PROJECT ON

MEDICAL PROFESSION AND CONSUMER PROTECTION ACT

SUBJECT
LAW AND MEDICINE

A project submitted to
University of Mumbai for partial completion of the degree of
Bachelor of Laws
Under the Faculty of Law

By
Mrs. Aparna Nilesh Virkar
Roll No. 226
TY-LLB
Under the Guidance of
Prof. Sanjay

SIDDHARTH COLLEGE OF LAW

Mumbai 400-023
2021-2022

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 DECLARATION

I the undersigned Mr. APARNA NILESH VIRKAR here by, declare that the
work embodied in this project work titled “MEDICAL PROFESSION AND
CONSUMER PROTECTION ACT”, forms my own contribution to the
research work carried out under the guidance of Prof. Sanjay is a result of my
own research work and has not been previously submitted to any other
University for any other Degree/Diploma to this or any other University.

Whenever reference has been made to previous works of others, it has been
clearly indicated as such and included in the bibliography.

I, here by further declare that all information of this document has been
obtained and presented in accordance with academic ruled and ethical conduct.

APARNA NILESH VIRKAR

Name and signature of the learner
Date: 21ST FEBRUARY 2022

Certified by
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 ACKNOWLEDGMENT

To list who all have helped me is difficult because they are so numerous, and
the depth is so enormous.

I would like to acknowledge the following as being idealistic channels and fresh
dimensions in the completion of this project. I take this opportunity to thank the
University of Mumbai for giving me chance to do this project.

I would like to thank my Principal, Mrs. Sandhya F. Dokhe for providing

necessary facilities required for completion of this project.

I take this opportunity to thank our Coordinator Prof. Sanjay, for his moral
support and guidance.

I would like to express my sincere gratitude towards my project guide Prof.

Sanjay, whose guidance and care made the project successful.

Lastly, I would like to thank each and every person who directly or indirectly
helped me in the completion of the project especially my parents and peers who
supported me throughout my project.

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 INDEX

Sr. No. Contents Page No.

01. Project Name I
02. Declaration II
03. Acknowledgement III
04. 1. Introduction 5
05. 2. Aim 5
06. 3. Synopsis 5
07. 4. Meaning of Burden of Proof 5-6
08. 5. Principles of Burden of Proof 6
09. 6. Types of Burden of Proof 6-7
10. 7. Section 101 to 114A under Chapter 7: Burden of 7 - 10
Proof
11. 8.Cases 10 - 11
12. 9.Opinion 11
13. 10.Conclusion 11-12
14. 12. Bibliography 12

MEDICAL PROFESSION AND CONSUMER PROTECTION ACT

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1. Introduction

The word profession is derived from the original latin profiteor which conveys a meaning
of making public statement of commitment, promise, announcement or confession. A
profession is not merely an occupation of highly learned and skilled technicians. It is also
includes a strong and inseparable moral commitment made publicly. The medical
profession is classified as a liberal profession in this context, not only from the
professional and sociological point of view, but also from the constitutional and legal
standpoint.

2. Aim
The aim of the project is to discuss various aspects of medical profession, its scope in
light of Consumer Protection Act.

3. Synopsis
The project objective is to study scope and ethical aspect of medical profession and its
relation with Consumer Protection Act. Data for the project is collected from related
websites and books. The flow of the project is to give introduction of the topic and
discuss the meaning, scope of the medical profession in light of Consumer Protection Act
also related case laws to explain it further.

4. Meaning of Medical Profession

Profession can be defined as a job that needs a high level of training and/ or education
and professionals are all the people who work in a particular profession. Medical
professional means any person licensed or certified to provide health care services to
natural persons, including but not limited to, a physician, dentist, nurse, chiropractor,
optometrist, physical or occupational therapist, social worker, clinical dietitian, clinical
psychologist, licensed professional counselor, licensed marriage and family therapist,
pharmacist, or speech therapist.

5. Meaning of Consumer protection Act

The Consumer Protection Act, implemented in 1986, gives easy and fast compensation to
consumer grievances. It safeguards and encourages consumers to speak against

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insufficiency and flaws in goods and services. If traders and manufacturers practice any
illegal trade, this act protects their rights as a consumer. The primary motivation of this
forum is to bestow aid to both the parties and eliminate lengthy lawsuits. This Protection
Act covers all goods and services of all public, private, or cooperative sectors, except
those exempted by the central government. The act provides a platform for a consumer
where they can file their complaint, and the forum takes action against the concerned
supplier and compensation is granted to the consumer for the hassle he/she has
encountered.
The Consumer Protection Bill, 1986 seeks to provide for better protection of the interests
of consumers and for the purpose, to make provision for the establishment of Consumer
councils and other authorities for the settlement of consumer disputes and for matter
connected therewith

6. Scope of Consumer Protection Act and Rights and Responsibilities of

Consumer
Consumer Protection Act includes:
 Sale of adulterated goods
 Sale of counterfeit goods i.e. product of lesser value than the real product
 Sale of sub-standard goods such as the sale of inferior quality products
 Sale of duplicate goods
 Malfunctioning of weight and measures that lead to underweight of products
 Black marketing and hoarding
 Overcharging a product i.e. price above its MRP
 Supplying of defective goods
 Misleading Advertisements
 Supply of inferior services
Following persons can file a complaint under Consumer Protection Act
 One or more consumers
 Any voluntary consumer associations
 Central or State government or the central authority
 A legal heir or legal representative
 A parent or legal representative in case of minor

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The Rights of the Consumer
 Right to Safety- Before buying, a consumer can insist on the quality and guarantee
of the goods. They should ideally purchase a certified product like ISI or
AGMARK.
 Right to Choose- Consumer should have the right to choose from a variety of
goods and in a competitive price.
 Right to be informed- The buyers should be informed with all the necessary
details of the product, make her/him act wise, and change the buying decision.
 Right to Consumer Education- Consumer should be aware of his/her rights and
avoid exploitation. Ignorance can cost them more.
 Right to be heard- This means the consumer will get due attention to express their
grievances at a suitable forum.
 Right to seek compensation- The defines that the consumer has the right to seek
redress against unfair and inhumane practices or exploitation of the consumer.
The Responsibilities of the Consumer
 Responsibility to be aware – A consumer has to be mindful of the safety and
quality of products and services before purchasing.
 Responsibility to think independently– Consumer should be well concerned about
what they want and need and therefore make independent choices.
 Responsibility to speak out- Buyer should be fearless to speak out their grievances
and tell traders what they exactly want
 Responsibility to complain- It is the consumer’s responsibility to express and file
a complaint about their dissatisfaction with goods or services in a sincere and fair
manner.
 Responsibility to be an Ethical Consumer- They should be fair and not engage
themselves with any deceptive practice.

7. Meaning and Scope of Medical Profession Law

Medical professional law can be defined as the sum of rules and standards that regulate
access to, and the practice of, the medical profession. Medical law is the branch of law
which concerns the prerogatives and responsibilities of medical professionals and the

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rights of the patient. Fundamentally, the goal of health professional regulatory regimes is
to ensure the highest quality of care to the public. Part of that task is to control what
health professionals do, or their scope of practice. Ideally, this involves the application of
evidence-based professional standards of practice to the tasks for which health
professional have received training.
The concept of Medical Law and Ethics basically looks into the inherent rights that
patients have regarding the privacy of their medical records, doctor-patient
confidentiality, the right to obtain emergency treatment and so on. Medical law is made
up of bits from a large number of different branches of law: Criminal Law, Human Rights
Law, Tort Law, Contract Law, Family Law, etc and is undoubtedly very confusing.
Medical Law is undergoing a massive change. Rapid scientific advances mean that
lawyers and ethicists are constantly required to face new issues. There have been a lot of
legislations and rules pertaining to Medical Laws like Policy of Family Planning,
Surrogacy Bill, laws pertaining to abortion and sex determination test, etc.

8. Ethics in Medical Profession

“Ethics” is concerned with studying and/or building up a coherent set of “rules” or
principles by which people ought to live. It is the social value which binds the society by
uniform opinion/consideration and enables the society to decide what is wrong and what
is right. It is the science of morale concerning principle of human duty in the society.
Medical ethics could mean the moral and not legal obligations that a medical practitioner
is supposed to abide by. However, there are a lot of times when some of the standards
known as medical ethics have legal effect as well. There is no universal definition of
medical ethics and more often than not, it is quite difficult to explain it. Ethics deals with
the right choices of conduct considering all the circumstances. It deals with the distinction
between what is considered right or wrong at a given time in a given culture. Medical
ethics is concerned with the obligations of the doctors and the hospital to the patient along
with other health professionals and society. The health profession has a set of ethics,
applicable to different groups of health professionals and health-care institutions. Ethics is
not static, applicable for all times. What was considered good ethics a hundred years ago
may not be considered so today.
The principal objective of the medical profession is to render service to humanity with
full respect for the dignity of profession and man.

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9. Medical Negligence
According to Salmond, negligence is an omission to do something which a reasonable
man, guided upon those considerations which ordinarily regulate the conduct of human
affairs, would do, or doing something which a prudent and reasonable man would not do.
“Medical negligence is the breach of a duty of care by an act of omission or commission
by a medical professional of ordinary prudence. Actionable medical negligence is the
neglect in exercising a reasonable degree of skill and knowledge to the patient, to whom
he owes a duty of care, which has resulted in injury to such person. The standard to be
applied for adjudging whether the medical professional charged has been negligent or not,
in the performance of his duty, would be that of an ordinary competent person exercising
ordinary skill in the profession. The law requires neither the very highest nor a very low
degree of care and competence to adjudge whether the medical professional has been
negligent in the treatment of the patient.
From this comprehensive definition given by the Apex Court, it emerges that in claims of
action-able negligence:
(i) there must be a duty of care upon the medical practitioner
(ii) that duty is breached
(iii) the breach is due to neglect in exercising a reasonable degree of skill and knowledge
to the patient
(iv) patient suffers an injury as a result of that neglect.
Also there are some grounds under which the doctor might not be held liable for
negligence, there are
(i) In case of error of judgement by the doctor, he shall not be charged against any such
actions.
(ii) The decision of the doctor did not turn out to be favorable, he cannot be held against
such error in judgement.
(iii) A doctor performing his duty with due care and caution could not be held liable for
negligence
Thus, medical negligence is a breach of duty of care by the medical practitioner due to
ne-glect in exercising reasonable care, resulting in injury to the patient.

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10.Medical profession and Consumer protection Act
Since the ancient times, certain duties and responsibilities have been cast n persons who
adopts sacred profession as exemplified by Charak’s Oath (1000 BC) and Hippocratic
Oath (460 BC). The doctor patient relationship has undergone a huge change as we
witness a fast pace of commercialisation and globalisation on all spheres of life. Doctors
were covered by various laws and was under various obligations too. These special
obligations have been expressed through codes of professional ethics, principles of
biomedical ethics, the concept of a fiduciary relationship, rich accounts of the virtues, and
obligations inherent in the doctor-patient relationship. There are numerous legislations
which have been formed and are currently in implementation in India which governs
medical professionals in India.
Passing of The Consumer Protection Act and covering medical profession under the same
has brought many litigations against Doctors. The Consumer Protection Act (CPA) is a
comprehensive legislation implemented in the year 1986 in India to promote and
safeguard the concerns of consumers. It gives consumers eight rights such as right to
redress, right to healthy environment, right to safety and right to be heard etc. Since
1990’s there is a huge speculation and debate on whether medical services are explicitly
or categorically included in the definition of “Services” as enshrined under Section 2(1)
(o) of the Consumer Protection Act (CPA). In 1995, the Supreme Court decision in Indian
Medical Association v. VP Shantha brought the medical profession within the ambit of
‘service’ defined in the Consumer Protection Act, 1986. This defined the relationship
between patients and medical professionals by giving contractual patients the power to
sue doctors if they sustained injuries in the course of treatment in ‘procedure free’
consumer protection courts for compensation. Since then, the provisions of the Consumer
Protection Act apply and cases of medical negligence can be filed before the
Commissions under the Act by patients and their relatives, who fall within the definition
of “consumer” under Section 2(1)(d) of the Consumer Protection Act.
For the smooth execution, consumer councils and consumer courts have been established
in the district, state and central level to settle the consumers’ disputes. The CPA was
enforced in India as people were reluctant to avail the services of the civil courts owing to
the excessive court fee and a long delay to get a final verdict. CPA has been formulated to

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be customer-friendly, as there is no court fee payment, the person can plead their own
case, and the decision is taken within 3-6 months.
Aggrieved parties, through provisions of the Act can now approach:
• District Forums: Medical negligence cases of up to Rs. 25 lakh are filed here as part of
its original jurisdiction.
• State Consumer Redressal Forum: Medical negligence cases of up to Rs. 1 crore are
filed here as part of its original jurisdiction. It also has appellate jurisdiction over cases
coming in appeal from the district forums within its jurisdiction.
• National Commission: Medical negligence cases of claims over Rs. 1 crore are filed
here as part of its original jurisdiction. It has appellate jurisdiction over cases coming in
appeal from all the state forums. The Consumer Protection Act is to protect “consumers”,
and is thus applicable only to medical services being provided to consumers, not
applicable in cases where medical aid is rendered free of charge. However, this does not
mean that a person who does not have the capacity to pay will not be protected.

Similar sorts of acts has even been implemented across the world and has shown
encouraging results in the field of medical care.

11.Cases
In Indian Medical Association vs. V.P. Santha [(1995) 6 SCC 651]
It was a landmark judgment in the year 1995 through which the Supreme Court brought
the medical profession within the ambit of a “service” [Section 2(1)(o)] as under the
Consumer Protection Act, 1986. Since then, the provisions of the Consumer Protection
Act apply and cases of medical negligence can be filed before the Commissions under the
Act by patients and their relatives, who fall within the definition of “consumer” under
Section 2(1)(d) of the Consumer Protection Act. The Hon’ble Supreme Court observed
that the medical practitioners are covered under the Consumer Protection Act, 1986 and
the medical services rendered by them should be treated as services under section 2(1) (o)
of the Consumer Protection Act, 1986. Similarly under the new Consumer Protection Act,
2019, the medical services shall fall under the ambit of services as mentioned in section
2(42) of the new Act. Any matter in medical negligence on the part of the service
provider will be considered as deficiency under section 42(11) of the new Consumer
Protection Act, 2019.

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In Vinod Jain vs. Santokba Durlabhji Memorial Hospital and Ors.,
The Hon’ble Supreme Court observed that the test for negligence shall be from the view
point that a doctor who has been accredited with a special skill or competence but does
not possess highest expert skill, it would in such case be sufficient that he exercises skill
of an ordinary competent man under similar scenario. This is primarily done for greater
good of the community at large, to prevent the doctors from thinking about their own
safety instead of the safety of the patients.
In Chandigarh Clinical Laboratory vs Jagjeet Kaur,
The National Consumer Disputes Redressal Commission upheld the findings of the
District and State commission wherein the appellant was directed to pay the complainant
a compensation of Rs.25,000 along with cost of Rs. 2,000. The appellant laboratory had
issued the patient with wrong reports for which the Hon’ble Commission held that the
appellant had “duty of care” to give accurate findings to the patient and failure of the
appellant to take due care shall amount to medical negligence.
Maharaja Agrasen Hospital v. Master Rishabh Sharma 2019 SCC OnLine SC 1658,
referring to Laxman Balkrishna Joshi (Dr.) v. Dr. Trimbak Bapu Godbole, (1969) 1 SCR
206 : AIR 1969 SC 128; Kusum Sharma v. Batra Hospital (2010) 3 SCC 480 : (2010) 2
SCC (Cri) 1127 : (2010) 1 SCC (Civ) 747

12.Opinion
The doctor-patient relationship relies on the mutual trust and conviction. However, over
the years owing to the commercialization of the health care and the medical profession,
the profession has run out of faith. The law is not enforced to penalize all health care
professionals that cause injury to the patients; but is concerned only with negligent acts.
The CPA provides a forum to safeguard the rights of the customers and establishes
guidelines for the speedy redress of their grievances against unethical medical practices.
It has been observed that the quality of medical services offered to the ordinary man has
also improved significantly since implementation of the act. Thus, there is an immense
need to update the understanding about the Act among all the stakeholders - patient,
doctors, and hospital management.

13. Conclusion

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Mutual trust and relationship between doctors and patients is an important factor of
treatment plan. Changing trends in medical field does affect this relationship. Lately,
Indian society has developed an awareness regarding their rights and public awareness
about medical negligence is growing. The reason is that the degrading standards of
professional competence, facilities, and the appropriateness of their therapeutic and
diagnostic methods. In earlier times, people were afraid of suing doctors or hospitals, but
with the passage of time, the law has played a major role in generating awareness among
people regarding their rights.
The enforcement of the consumer protection act is a crucial step in ensuring reforms in
doctor-patient relationship and to benefit the patient, doctor, and society in general in
years to come.

14. Bibliography
o https://lexology.com/
o https://en.wikipedia.org/
o https://arbitrationlaw.com/
o https://www.legalserviceindia.com/
o https://lawtimesjournal.in/
o https://legislative.gov.in/
o https://www.medindia.net/

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