CONSUMER PROTECTION ACT CPACOPRA CONTENTS n n n

CONSUMER PROTECTION ACT (CPA/COPRA)

CONTENTS n n n n Time line Introduction Background Why CPA? Definitions Rights of Consumers Rights of patients

CONTENTS n n n Consumer Disputes Redressal Agencies Who can sue the doctor Who is liable Who is not liable Lodging a complaint Precautionary Measures

CONTENTS n n n n Allegations What to do if sued What should not do CPA & Pts Penalty Salient Features of CPA Limitation of CPA

Introduction n In the entire health care delivery system the most vital sector is the medical profession. n Over the centuries the medical profession has been accorded respect by the society. n Increasing commercialization of the profession has eroded the faith.

Background n On April 9, 1985 the General Assembly of the United Nations, by Consumer Protection Resolution No. 39/ 2488, adopted the guidelines to provide a frame work for Governments, particularly those of developing countries, to use in elaborating and strengthening consumer protection policies and legislation.

Background … n Keeping in view the said guidelines, thus, the Consumer Protection Act was passed in the year 1986 (being Act No. 68 of 1986) after receiving assent of the President on 24 th December, 1986.

WHY CPA? n DCI n THE COURTS Delay Can’t award Expensive damages Lmtd Access Can only cancel regstrn. The answer – Alternate dispute resolution system – Easy, quick, accessible, cheap and effective Sec 3 A, 12, CPA 1986

Definitions n Complainant means – (i) a consumer ; or (ii) any voluntary consumer association registered under the Companies Act, 1956 or under any other law for the time being in force; or (iii) the Central Government or any State Government ; (iv) one or more consumers, where there are numerous consumers having the same interests ; who or which makes a complaint.

Definitions…. n Complaint means – Any allegation, in writing made by a complainant that • The services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect. • Goods which will hazardous to life and safety when used, are being-offered for the sale to the public. • Services which are hazardous or likely to be hazardous to life and safety of the public when used, are being offered by the service provider which such person could have known with due diligence to be injurious to life and safety.

Definitions…. n • Consumer means – Any "person" who hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person.

Rights of Consumers n The eight rights as defined by the International Organization of Consumers’ Union ( IOCU) are as follows : 1. 2. 3. 4. 5. 6. 7. 8. The Right to Safety The Right to be Informed The Right to Choose The Right to be Heard The Right to Redress The Right to Consumer Education The Right to a Healthy Environment The Right to Basic Needs

Consumer Protection Act, 1986 Empowers the consumer with the Right to : Safety n Information n Choose n Heard n Redressal n Consumer education n Sec 4 to 8 of The CPA ( Amendment ), 2002

Consumer Disputes Redressal Agencies n Redressal agencies have a three-tier structure i. e. they have been established at three different levels : - n - "District Consumer Disputes Redressal Forum (DCDRF) to be known as “District Forum”. n - "State Consumer Disputes Redressal Commission to be known as the “State Commission”. (SCDRC) n - "National Consumer Disputes Redressal Commission (NCDRC )

Consumer Disputes Redressal Agencies DISTRICT FORUM n Jurisdiction Up to Rs. 20 lakhs n Established by State Govt. n Composition President + 2 Members n Powers Examines complaints Issues notices Orders analysis / tests Conducts hearings Award damages Sec 9 to 15 of THE CPA ( Amendment ), 2002

Consumer Disputes Redressal Agencies STATE COMMISSION n Jurisdiction From 20 lakhs Up to 1 Crore n Composition President + ≥ 2 Members n Power Similar to district forum + Hearing of appeals Sec 16 to 19 of The CPA ( Amendment ), 2002

Consumer Disputes Redressal Agencies NATIONAL COMMISSION n Jurisdiction > Rs. 1 Crore n Composition President + ≥ 4 members n Powers Similar to State forum + Hearing of appeals Sec 20 to 25 of The CPA ( Amendment ), 2002

Who can sue the doctor under CPA? n Patient himself n Registered consumer organizations n State or Central Govt. n The legal heir or legal representative.

Who is liable ? n All medical practitioners (medical, dental, others) n All private or trust hospitals, polyclinics n Govt. hospitals and doctors charging a fee. n Laboratories, X-ray clinic n The nurses and paramedical staff n Medical stores, and pharmaceutical companies. n Doctors/hospitals paid by an Insurance firm for treatment of a client or an employer for the treatment of an employee.

Who is not liable ? n Free service- free service in a hospital. n Contract of service n Govt. doctors working in free hospitals. n Free non-governmental hospitals and doctors are exempted. n Emergency care in the interest of patient is exempted.

LODGING A COMPLAINT n FORMAT: Written n PERSON : Complainant / Representative n n PLACE : FEE : Consumer Dispute Redressal Fora Nominal n TIME LIMIT : ≤ 2 yrs n FATE : Sec 12 CPA 1986 Accepted Dismissed

Limitation Period n The District Forum , the State Commission or the National Commission shall not admit a complaint unless it is filed within 2 years from the date on which the cause of action has arisen. n In case there are sufficient grounds for not filing the complaint within such period, extension may be granted.

Dismissal of frivolous or vexatious complaints n Since no expenses are involved, an apprehension has been raised that there would be a spate of complaints against the Medical Practitioners with a view of blackmail them. n This apprehension is without any basis because the Act has provided a safe guard against such apprehension in the shape of section 26, by virtue of which a frivolous or vexatious complaint would stand dismissed and the complainant may be burdened with cost of the proceeding which may be as high as Rs 10, 000. 00

Common Patient Complaints n n n Too little time for patients Does not listen Does not explain well Shows no sympathy Neither understands the patient nor his family Hey, DOC !

Professional Negligence: Definition: Absence of reasonable care or skill or willful negligence on the part of the medical practitioner in the treatment of the patient whereby the health or life of the patient is endangered.

Proof of Negligence 4 D’s The essentials of negligence are four "D"s: 1. 2. 3. 4. There was a Duty towards patients; There was Deficiency in duty This Directly resulted in (causans ) Damage which may be physical, mental or financial loss to patient or relatives.

Proof of Negligence…. n “The thing or the fact speaks for itself. ” n Error is so self evident that the doctor has to prove his innocence. n E. g. , Extraction of right instead of left tooth.

Negligence…. Interesting Dental Cases: § Parmley vs. Parmley (1945) 4 DLR 81. A patient requested that two of his teeth be removed. The dentist found all the upper teeth in a stage of advanced periodontitis and mobility. He extracted all the teeth. The dentist was held liable. § Garner vs. Morrell (1953) Times 31 Oct. CA While extracting a tooth the gauge slipped into the throat and caused asphyxation resulting in death. The dentist was held liable for the death of the patient.

Negligence…. Interesting Dental Cases: § Lock vs. Scantlebury (1963) Times 25 July A dentist did an extraction. Subsequently, the patient complained of pain and difficulty in eating and speaking. The dentist prescribed drugs. Later, it was found that he had dislocation of the jaw. The court held that dislocation itself was not negligence, but his failure to recognize the TMJ dislocation was negligence. § Ishwardas vs. VK Gupta I (1992) CPJ 118 NC. Ill fitting dentures which were due to poor technique resulting in ulceration and pain. The dentist did not rectify the mistake. The dentist was held liable.

“Informed” Consent How well do you understand it?

Consent § Defined as “ When two or more persons agree upon the same thing in the same sense they are said to consent” as per the definition of consent given in section 13 of Indian Contract Act, 1872.

What is Informed Consent n An educational activity for doctor and patient n A process of building trust and mutual respect

What is Informed Consent n A process of shared decision making by the physician and patient n An active communicative process

Informed Consent IMPLIES: Understanding by the patient : Natural history of the disease. • Nature of proposed treatment. • Anticipated prognosis of the proposed intervention. • Expected side effects. • Unexpected hazards. • Any alternative and potentially successful treatment. • Consequences of no treatment at all. •

Types of consent n Implied : inferred from actions n Express : actively stated n Proxy consent : on behalf of others

WHO CAN GIVE CONSENT COMPENTENCE/CAPACITY n Understands information presented. n Believes it. n Competent Adult ( > 18 yrs ) n In case of Minors ( < 12 yrs ) – Parent or legal guardian.

Allegations… DENTIST n n n Slipping instruments. Broken needles. Root left in the socket without the knowledge of the patient. Extraction of wrong tooth. Lack of consent. Injury due to ill fitting dentures.

Allegations… DENTIST § § § Flying fragments entering respiratory passages. Infection from unsterile instruments. Fracture & dislocations of jaw occurring during dental procedures. Failure to fulfill the duty to advice patients of injury or condition such as broken needle or tooth fracture. Death from anesthesia and drug allergy

MEASURES PREVENTION AT PERSONAL LEVEL Qualification Communication INTERPERSONAL LEVEL Courteous and polite if any mishap ACADEMIC AND TECHNICAL UP GRADATION Attend CME, Workshops and Conferences

PREVENTION AT PRACTICE MEDICAL Reasonable skill and care SOCIAL Exhibit skill to patient: body language LEGAL § Document in legible handwriting § Record of failure

OTHER MEASURES PEOPLE SUPPORT GROUPS n n Forum to discuss acts and cases fought Never talk loose of your colleague MEDICAL ETHICS n Thorough knowledge is a must PROFESSIONAL INDEMNITY n Insurance

Appeal in a higher court Counter compensation suits

What to do if sued Steps to be taken immediately n Inform your insurance company at the earliest n Keep a photocopy of the papers & envelope received and send the originals to the insurance company n Write the summary of treatment using treatment records – refresh memory n Make a photocopy of complete records & lock the originals at a safe place n Tell your staff about suit and instruct them not to talk about case to anyone with out permission n Cooperate with your insurance company

What should not do if sued n n n n n Don’t get upset Tell patient that you are insured Agree to offer a settlement with out consulting insurance company Agree to offer a specialist fees with out consulting insurance company Alter your patient’s records Give the original treatment records to the patient or anyone except court if required Discuss about the patients treatment with anyone Admit fault or guilt to anyone Contact any other practitioner about the case

CPA and patients Advantages: n Costly and time consuming litigation is avoided by going to consumer courts n These courts ensure a cheap and fairly quick remedy Disadvantages n Doctors will practice “defensive medicine” I. e. more referrals than may normally be required , this will make it more expensive

CPA and patients…. Disadvantages n Insurance premium for doctors and hospitals will shoot up. This will be passed on to the patient in terms of higher medical cost n Patient –doctor relationship based on mutual trust and confidence will gradually disappear and a completely formal , contractual and antagonistic relationship might replace it.

CPA and Doctors Disadvantages n The doctor prescribes medicine or treatment on the basis of a personal judgment formed “at the time of examination”. The situation might change thereafter. It is difficult for lay people to judge all cases. n As there is no court fees , many frivolous and vexatious cases may be filed against doctors-this will hit his practice as also reputation even if case is eventually dismissed , the complainant loses nothing. n Danger of professional black mailers- trying to tarnish good name of doctors or squeeze money out of them even when they are not to be blamed.

Penalty n Where a person fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, such person shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years, or with fine which shall not be less than 2, 000 rupees but which may extend to 10, 000 rupees or with both.

Salient Features of CPA n It has the powers of a civil court. n Speedy justice n Accepts expert opinions as affidavits n No Court Fees (changed with effect from 15/3/2003 n No appeal fees (changed with effect from 15/3/2003. n The court shall forward complaint to opposite party within 21 days.

Salient Features of CPA n Opposite party replies within time given by court. n Decision within 3 months ( Act no 62 of 2002 ) n Adjournment only with recorded reasons ( Act no 62 of 2002) n Appeal in 30 days to State Commission. n Appeal in 30 days to National Commission. n Appeal in 30 days to Supreme Court.

Salient Features of CPA • Maximum time limit for claim 2 years. • No dental or medical experts in jury. • • Prescribes penalty for noncompliance. ( 2000 TO 10000 Rs). Imprisonment ( 1 month to 3 years).

Limitation of consumer forum n The national consumer redressal forum has observed that, if a consumer complaint pertaining to medical negligence is required to be adjudicated in the light of detailed evidence, the civil court is the proper forum and not the consumer forum. n These courts languish because of inadequate facilities and funds from state government and in some cases appointments of politicians or ill qualified persons on panel. These defects should be rectified