By Lalit Bhasin

The Hon’ble Supreme Court recently observed that professions including medical doctors should be excluded from the provisions of the Consumer Protection Act, 2019 (CPA) and called for review of the judgments of the Court by a larger bench. Recently, in the case of Bar of Indian Lawyers through Its President Jasbir Singh Malik versus D. K. Gandhi PS National Institute of Communicable Diseases and Another decided on 14 May 2024, the Supreme Court held that lawyers are not covered under the provisions of the Consumer Protection Act, 2019 (CPA) significantly. While laying down the law regarding the legal profession, the Hon’ble Court made a categorical suggestion for a review of a catena of judgments of the Supreme Court that say medical professionals can be sued for negligence under CPA. 

The Hon’ble Court in the above-mentioned case observed as under:

“We are conscious of the decision in Indian Medical Association vs. V.P. Shantha & Others, in which a three-Judge Bench of this Court has held inter alia that the wide amplitude of the definition of ‘service’ in the main part of Section 2(1)(o) would cover the services rendered by Medical Practitioners within the said Section 2(1)(o). However, in our humble opinion, the said decision deserves to be revisited having regard to the history, object, purpose and the scheme of the CP Act and in view of the opinion expressed by us hereinabove to the effect that neither the “Profession” could be treated as “business” or “trade” nor the services provided by the “Professionals” could be treated at par with the services provided by the Businessmen or the Traders, so as to bring them within the purview of the CP Act.”

Medical negligence cases are based on judge-made law. The statute does not expressly cover the professions which have been equated with service providers. In the case Jacob Mathew versus State of Punjab decided by the Hon’ble Supreme Court, it has been held that medical negligence is covered under the provisions of the Consumer Protection Act. This was followed by other judgments.

Medical practitioners are governed by the provisions of the Medical Council Act and the regulator is the Medical Council of India. The regulator obviously consists of experts from the medical profession and elaborate provisions have been made regarding conduct or misconduct of the medical profession and the penalties which can be imposed.

The Medical Council Act is a self-contained complete code governing the medical profession. There is no reasonable justification or rationale to treat the medical profession and the legal profession and for that matter other professions differently. The duties, the degree of care and obligation of the patients in the case of the medical profession and to the clients in the case of lawyers are identical. No doctor would wish the patient to die or suffer serious infirmities despite the treatment. Two doctors may offer different courses of treatment, but no negligence can be attributed if the decision to take to one course of treatment does not prove successful. Even in minor surgeries, serious complications can arise due to unforeseeable conditions within the body of the patient. 

A doctor, according to his expertise, skill or specialization, attends to a patient and offers appropriate treatment. The treatment may be by simple medical advice, medication and/or by surgical procedure, depending upon the nature and seriousness of the problem. It is, therefore, unimaginable that a medical professional can be accused of medical negligence and made liable for the payment of huge compensation if the Consumer Fora come to the conclusion that there has been negligence on his part. Moreover, Members of Consumer Fora are not experts in the field of medicine.

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There are other remedies available, both in civil and criminal law, if a case of willful or gross negligence on the part of professionals is established. 

What applies for the medical and legal profession would equally apply to other professions such as Chartered Accountants, company secretaries, engineers, architects, etc. It would be apt to reproduce what the Hon’ble Court held in the lawyers’ case:

“There was not a whisper in the statement of objects and reasons either of the CP Act, 1986 or 2019 to include the Professions or the Services provided by the Professionals like Advocates, Doctors etc. within the purview of the Act. It is very well-accepted proposition of the fact that Professionals could not be called Businessmen or Traders, nor Clients or Patients be called Consumers. It is also required to be borne in mind that the terms ‘business’ or ‘trade’ having a commercial aspect involved, could not be used interchangeably with the term ‘Profession’ which normally would involve some branch of learning or science. Profession as such would require knowledge of an advanced type in a given field of learning or science, or learning gained by a prolonged course of specialised study.”

(The author is the president of the Society of Indian Law Firms. Views expressed are the author’s own and not necessarily those of financialexpress.com.)