Legal Matters

To safeguard the interests and needs of the Indian public who access health care in the country, the law has developed certain frameworks. Today, a person who has suffered due to the negligence of medical practitioners has a right to seek redress. Despite being governed by the Indian Medical Council Act and subject to the disciplinary control of the Medical Council of India and State Medical Councils, the medical practitioners can be sued under the Indian Law.

Under the Indian law, the remedies available to a person seeking redressal for medical malpractice are:

Suit for damages under the Civil Procedure Code
Complaint for negligence under the Criminal Procedure Code
Redressal under the Consumer Protection Act

The Consumer Protection Act was passed in 1996 to safeguard the interests of the consumers. Under this act, there are three fora constituted for redressal of consumer grievances. The aggrieved party files a complaint before one of these fora depending on the financial compensation claimed in the petition.



What are the financial limits of each of the fora?

The District Consumer Disputes Redressal Commission entertains complaints upto a maximum of Rs. 1 lakh

The State Consumer Disputes Redressal Commission addresses complaints seeking compensation below Rs. 5 lakhs

The National Consumer Disputes Redressal Commission addresses complaints seeking compensation over Rs. 5 lakhs

Against an order passed by the National Consumer Disputes Redressal Commission, there is a right of review by the Supreme Court. Appeals to the state and National Consumer Disputes Commission lie against orders of the District and the State Consumer disputes Commission respectively.

The question whether the services rendered by the medical professionals would come under the purview of 'Services' as envisaged and defined under the Consumer Protection Act, came for consideration before several High courts in India. The decisions rendered by the different High Courts of India was conflicting. Therefore, the matter was finally decided by the Supreme Court in a landmark judgement wherein the Supreme Court laid down certain guidelines and inferences that answer the above question.




Service rendered to the patient by a medical practitioner (except where the doctor renders services free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the "ambit of services" as defined in section 2(1) (0) of the Act.



The fact that the medical practitioners belong to the medical profession and are subject to the disciplinary control of the medical councils constituted under the provisions of the Indian Medical Council Act would not exclude the services rendered by them from the ambit of the Act.



A "contract of personal services" has to be distinguished from a "contract for personal services". In the absence of a relationship of master and servant between the patient and medical practitioner, the service rendered by a medical practitioner to the patient cannot be regarded as services rendered under the "contract of personal services" and is not covered by exclusionary clause of the definition of "services" contained in section 2(1) (0) of the Act.



The expression "contract of personal services" in section 2(1) (0) of the Act cannot be confined to contracts for employment of domestic servants only, the expression would include the employment of the medical officer for the purpose of rendering medical services to the employer. The service rendered by the Medical officer to his employer under the contract of employment would be outside the purview of "services" as defined in section 2(1) (0) of the Act.



Services rendered free of charge by a medical practitioner attached to the hospital/nursing home or where such services are rendered free of charge to everybody, would not be "services" as defined in section 2(1) (0) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.



Services rendered at a non-government hospital/nursing home where no charge whatsoever is made from any person availing of the services and all patients (rich and poor) are given free service is outside the purview of the expression "services" as defined in section 2(1) (0) of the Act. The payment of the token amount of registration purpose only at the hospital/nursing home would not alter the position.



Services rendered at a non-government hospital/nursing home where charges are required to be paid by the persons availing of such services falls within the purview of the expression "services" as defined in section 2(1) (0) of the Act.



Services rendered at a non-government hospital/nursing home where charges are required to be paid by the persons who are in a position to pay and persons who cannot afford to pay are rendered services free of charge would fall within the ambit of the expression "services" as defined in section 2(1) (0) of the Act, irrespective of the fact that the service is rendered free of charge to persons who are not in a position to pay for such services. Free services, would also be "service" and the recipient a "consumer" under the Act.



Services rendered at a Government hospital/health center/dispensary where no charge whatsoever is made from any person availing the services and all patient (rich and poor) are given free service is outside the purview of the expression "services" as defined in section 2(1) (0) of the Act. The payment of the token amount of registration purpose only at the hospital/nursing home would not alter the position.



Services rendered at a Government hospital/health center/dispensary where services are rendered on payment of charges to other persons availing of such services would fall within the ambit of the expression "services" as defined in section 2(1) (0) of the Act irrespective of the fact that the services is rendered free of charge to persons who do not pay for such service. Free service would also be "service" and the recipient a "consumer" under the act.



Services rendered by a medical practitioner or hospital/nursing home cannot be regarded as services rendered free of charge, if the person availing of services has taken an insurance policy for medical care where under the charges for consultation, diagnosis and medical treatment are borne by the insurance company and such services would fall within the ambit of "services" as defined in section 2(1) (0) of the Act.



Similarly, where as a part of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family members dependent on him, the services rendered to such an employee and his family members by an medical practitioner or hospital/nursing home would not be free of charge and would constitute "services" under section 2(1) (0) of the Act.






Under the Civil procedure code, a suit for damages can be filed before either the City Civil Court or the original side of the High Court depending on the pecuniary compensation claimed. This would however involve payment of court fee, which would vary from state to state.

Under the Code of Criminal Procedure, a complaint can be filed alleging criminal negligence against the medical practitioner.