Dr. K. Mathiharan (Consultant Legal Medicine)
Institute of Legal Medicine
53/27, 5th Street, Padmanabha Nagar,
Chennai - 600 020
The NCDRC’s order did not accept the claim of medical professionals
who argued that the doctor-patient relationship is similar to master –
servant relationship, which is a contract of personal service that should
be exempted from CPA. But the NCDRC’s order decreed that the doctor –
patient relationship is a contract for personal service and it is not
master – servant relationship. It is also said that the doctor is an
independent contractor and the doctor, like the servant, is hired to
perform a specific task. However, the master or principal (the hirer) is
allowed to direct only what is to be done, and done, and when. The
‘how’ is left up to the specific discretion of the independent
contractor (doctor). So, the doctor-patient relationship is a contract for
personal service and as such, cannot be excluded from CPA.
Highlights of the Supreme Court of India judgment in
Indian Medical Association
V.P. Shantha and Others
As a result of this judgment, medical profession has been brought under
the Section 2(1) (o) of CPA, 1986 and also, it has included the following
categories of doctors/hospitals under this Section:
1. All medical / dental practitioners doing independent medical / dental
practice unless rendering only free service.
2. Private hospitals charging all patients.
3. All hospitals having free as well as paying patients and all the paying
and free category patients receiving treatment in such hospitals.
4. Medical / dental practitioners and hospitals paid by an insurance firm
for the treatment of a client or an employment for that of an employee.
It exempts only those hospitals and the medical / dental practitioners of
such hospitals which offer free service to all patients.
Further, this judgment concedes that the summary procedure prescribed by
the CPA would suit only glaring cases of negligence and in complaints
involving complicated issues requiring recording of the evidence of
experts, the complainant can be asked to approach the civil courts.
Also, this judgment says that the deficiency in service means only
negligence in a medical negligence case and it would be determined under
CPA by applying the same test as is applied in an action for damages for
negligence in a civil court.
As a result of this
judgment, virtually all private and government
hospitals and the doctors employed by them and the independent medical /
dental practitioners except primary health centers, birth control
measures, anti malaria drive and other such welfare activities can be sued
under the CPA.