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  Dermatologists and the Consumer Protection Act in India                                       Your comments about this article   

CHARAK’S OATH
(1000 B.C.) According to this the teacher instructed the disciples in the presence of the sacred fire, Brahmanas and Physicians thus :

" Thou shalt be free from envy, not cause another’s death, and pray for the welfare of all creatures. Day and night thou shalt not desert a patient, nor commit adultery, be modest in thy attire and appearance, not to be drunkard or sinful, while entering a patient’s house, be accompanied by a person known to the patient. The peculiar customs of the patient’s household shall not be made public."
  Issues Before the Medical Profession
Preventive Steps Against Litigation              Some Do's and Dont's
Protection Against Outcome of Litigation
Glossary of terms  as concerns the Medical Profession.
Issues Before the Medical Profession
1. What was the necessity of the Consumer Protection Act, and its application to the Medical Profession ?


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This is the foremost question which comes to the mind of the doctors. This necessity arose because the existing laws of the land which provide for action in cases of medical negligence under the Law of Tort and Indian Penal Code, have some well documented problems. These include the following : (i) Delay, which, in medical negligence cases, tends to be greater ; (ii) the cost of bringing an action, which is notoriously high in relation to the sums recovered in damages ; (iii) limited access to the courts ; (iv) success depends on proof of both negligence and causation ( which can be particularly difficult in cases of medical negligence).
Hence necessity to provide for an alternate system which would be easily accessible, speed and cheap, gave birth to the Consumer Protection Act. This Act was made applicable to the doctors because there are no provisions in the Indian Medical Council Act, 1956 ; (i) to entertain any complaint from the patient ; (ii) to take action against the Medical Practitioner in case any negligence has been committed ; (iii) to award any compensation, etc. in case the negligence is proved.

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2. Who is a consumer ?
Consumer is : (a) a patient who pays to get services of doctor /hospital ; (b) any person who pays for the patient ; (c) legal heirs /representatives of such patients ; (d) spouse, parents and children of the patient.

3. Does the service rendered by doctors / hospitals stand excluded because it is under a contract of personal service as distinguished from a contract for service ?
This is the key clause being disputed by the doctors.
The judgements till date have held that the medical services rendered by doctors / hospitals for payment are covered under this Act as they are not Contract of Personal Services but Contract for Services. Contract of Personal Service involves Master-Servant relationship which must satisfy four criteria stated in the column ‘Master - Servant Relationship ‘hereunder :-

Master -Servant Relationship

(as per National Commission Decision)

Doctor-Patient Relationship

(as per doctors’ contention)

(I) The employer’s (master’s) power of selection of his employee (servant). (I) A patient /guardian has full power of selecting his doctor/hospital. He is not under any compulsion
(ii) The payment of wages or other remuneration. (ii) A doctor is also paid remuneration and steps into the shoes of an ‘employee’during the period he gives treatment or performs operation.
(iii) The employer’s right of suspension or dismissal (iii) The patients/guardians also have the right to reject the services of doctor/hospital (which is equivalent to suspension /dismissal) any moment they are not satisfied, they feel that they have a better alternative without any reason.

On the basis of these three criteria the relationship between doctor and patient is similar to master and servant. Patient can choose any doctor/hospital, go for treatment if the charges are suitable and reject the services at any moment without assigning any reason.

(iv) The employer’s right to control the method of doing the work. (iv) Coming to the 4th criteria, which has been considered as cardinal in distinguishing between Contract of personal service and Contract for Service is the EXISTENCE OF THE RIGHT TO CONTROL. This control is never 100% even in Master-Servant contract, as servant is not a machine. You can order a servant to suspend all other work and clean the utensils but cannot control his response, how quick and well he will clean the utensils, how many utensils he will break etc. We all know how much exactly, we can control the servant We all know the consequences, if we are rude, harsh, physically or verbally abusive with the servant.We have got to be polite with him and respect his sensibilities. We must distinguish between Master-Servant and Master-Slave relationship.

Medical professionals strongly feel that the relationship between Doctor - Patient is that of Contract of Personal Service,where they consider patient to be the master and themselves as servants with the exception that God has bestowed them with professional skill to serve the master (human body) with a difference. They do not deny accountability, not do they deny existence of erring hospitals, deviant doctors and malpractice.But, the percentage of this is too small to give to the general public daggers to run after doctors.
Medical professionals fully agree that efforts should continue so that the master (human body) can be served even better. If the master losses faith in them, their very existence will be threatened.
4. What exactly is the degree of control a doctor has over his patient ?

 



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Kindly ponder over these aspects :

A patient may show up very late in course of illness - some times in terminal stages. If consulting time / waiting time for consultation / treatment does not suit patient he is free to approach someone else.

Patient may come without any record whatsoever of treatment already taken.

Patient may be hiding facts from the doctor. The Doctor does not have any foolproof method to know whether the history is true.

Patient may question the probable diagnosis, drugs prescribed, their role, side-effects, cost, interaction etc. and may avoid taking the prescribed medicine.

After the consumer (patient ) leaves the doctor’s clinic with the prescription, can a doctor control subsequent actions ?

Will all the prescribed medicines be purchased?

Will the prescribed doses he administered at correct intervals ?

Will the full course of treatment be given ? What if patient takes treatment for only 2 days instead of 5 ?

Will other precautions advised be taken ?

Can the doctor control follow-up of patient ? Patient may not come at all or come according to convenience. Doctor does not know he has improved / deteriorated / gone elsewhere .Follow-up, which is cardinal component of medical management is entirely beyond the control of the doctor. Irregular treatment is tubercular patients, rheumatic heart disease, epileptics etc. is well known.
Patient may comply with doctor’s prescription but concomitantly use Homeopathic, Ayurvedic or Unani medicines, the interactions of which are not known. Patient may resort to magic / faith healing. How can a doctor control this ? A case of jaundice is advised certain tests, precautions and medicines. Patient may not bother about these and after leaving doctor’s clinic may go for "Jhara" (Magic healing ).In case of deterioration, how can a doctor’s service be held deficient ?
Some patients refuse investigations without which at times correct management is not possible.
Whenever a patient feels that he is not getting well with the treatment of a doctor/ hospital he is free to leave any moment, or to consult any other doctor. Most private hospitals permit consultation with any doctor the patient /attendants wish to. They can always question the ratinale of treatment, progress of illness during the course of treatment.
Doctor does not guarantee a diagnosis. It may be a provisional diagnosis or a differential diagnosis on which the treatment may be based.
Doctor never guarantees a cure. He makes his best efforts because he knows that much more than anything else, his professional reputation is at stake.

Preventive Steps Against Litigation  Some Do's and Dont's
  The coming into existence of compensation oriented Consumer Forums, the medical profession has been suddenly made to sit-up. What they were doing till the other day in mutual trust could land them into trouble, if they do not exercise extra precautions.
Where the doctor feels that the patient is suffering from some major illness in which complications are pre-existing or are likely to occur, he should take proper precautions. The precautions desired to be taken may be summarised as " Do’s and Don’ts" which are as follows :-
 

SOME DO’S

Mention your qualifications on the prescription. Qualifications mean   recognized degrees / diplomas as regulated by the Indian Medical Degrees Act, 1916 as amended from time to time. Mention of scholarships/training / membership/awards which are not qualifications should be avoided.
Always mention date and timing of the consultation.
Mention age, sex, weight (if child).
In complicated cases record precisely history of illness and substantial physical findings about the patient on your prescription.
If the patient/attendants are erring on any count ( history not reliable, refusing investigations, refusing admission ) make a note of it or seek written refusal preferably in local language with proper witness.
Mention the condition of patient in specific /objective terms. Avoid vague / non-specific terminology.
Record history of drug allergy.
Write name of drugs clearly. Use correct dosages (by revising knowledge periodically) and mention clearly method and interval of administration. Here one must use local or sign language. Do not forget writing precautions like Ast./p.c./a.c./locally/with milk/h.s. etc.
If a drug is a poison ( e.g., certain local applications ), warn in writing.
Mention additional precautions e.g., food, rest, avoidance of certain drugs, allergens, alcohol, smoking etc. if indicated.
Mention whether prognosis explained. If necessary take a signature of patient /attendant, after explaining the prognosis in written local language.
In case of any deviation from standard care, mention reasons .
Specifically mention review, SOS/or follow-up schedule.
Mention if patient /attendant are/is under effect of alcohol/drugs.
In case a particular drug/equipment is not available, make a note.
Mention where the patient should contact in case of your non-availability /emergency.
Keep updating your knowledge. Read again what you think you already know. You will be in for surprises.
Routinely advise X-rays in injury to bones /joints.

SOME DON’TS

Do not hesitate to discuss the case with your colleagues.
Do not hesitate to discuss the case with patients /attendants.
Do not write Ayurvedic formulations.
Do not allow substitutions.
For goodness sake do not examine a patient if you are sick,exhausted, under effect of alcohol.
Never talk loose of your colleagues, despite intense professional rivalry. Never criticize your brother in profession. The patient /attendants may incite you to say/do something. They may seek your comments on the other doctor’s treatment. There is always a polite way to set aside their queries. Remember if you had seen the case from start you would done the same. If your colleague has made error of judgement regarding diagnosis or treatment, you never know under what circumstances this happened.
Do not adopt experimental method in treatment. If there is some rationale do it only after informed consent.
If you to back and read the Duties and Obligations of Doctors carefully and apply them religiously in your day to day practice,you are safe.

CONSENT

Another major and important thing to do for a doctor is to obtain proper consent of the patient / attendant / relative.
The term ‘consent ‘ is defined thus : 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.
Who can given consent : For the purpose of clinical examination diagnosis and treatment consent can be given by any person who is conscious, mentally sound and is of and above twelve years of age as provided under sections 88 and 90 of the Indian Penal Code, 1860.
Doctors are reminded that consent is taken under section 13 of the Indian Contract Act, 1872. This Act, however also provides under Section 11 that only those persons who are of and above 18 years of age are competent to enter into a contract.Since doctor-patient relationship amounts to entering into a contract, it is advisable that consent should be obtained,specially written consent, from parents / guardian of a patient who is below 18 years so that validity of the contract is not challengeable.
When a consent is not valid : Consent given under fear, fraud or misrepresentation of facts, or by a person who is ignorant of the implications of the consent, or who is under 12 years of age is invalid ( Sec. 90 I.P.C.).
In most of the cases filed against the doctors it is alleged that no consent was obtained. Obtaining of a consent will thus be a cornerstone of protection against litigation. Depending upon the circumstances in each case consent may be implied, express or informed.

Implied consent ( Tacit consent )
This is by far the most common variety of consent in both general practice and hospital practice. The fact that a patient comes to a doctor for an ailment implies that he is agreeable to medical examination in the general sense. This, however, does not imply consent to procedures more complex that inspection, palpation, percussion, auscultation and routine sonography. For other examinations, notably rectal and vaginal and withdrawal of blood for diagnostic purpose, express consent ( oral or written ) should be obtained. For more complicated diagnostic procedures, e.g., lumbar puncture, radiology,endoscopy, C.T. Scan, etc. express written consent should be obtained.

Express consent
Anything other than the implied consent is express consent. This may be either oral or written. Express oral consent is obtained for relatively minor examinations or therapeutic procedures,preferably in the presence of a disinterested third party. Express written consent is to be obtained for : (i) all major diagnostic procedures, (ii) general anesthesia, (iii) for surgical operations,(iv) intimate examinations, (v) examination for determining age,potency and virginity, and in medico-legal cases.

Informed Consent
The concept of informed consent has comes to the fore in recent years and many actions have been brought by patients who alleged that they did not understand the nature of the medical procedure to which they gave consent. All information must be explained in comprehensible non-medical terms preferably in local language about the (a) diagnosis, (b) nature of treatment,(c) risks involved, (d) prospects of success, ( e) prognosis if the procedure is not performed, and (f) alternative methods of treatment. The physician’s duty to disclosure is subject to the exceptions : (a) if the patient prefers not be informed and (b) if the doctor believes in the exercise of coming to a sound medical judgement, that the patient is so disturbed or anxious that the information provided would not be processed rationally or that it would probably cause significant psychological harm. This is known as Therapeutic Privilege. In such a case it is advisable that the doctor should consult the patient’s family physician.Revelation of risk is always a compromise between reasonable information and the danger of frightening off the patient from beneficial treatment. The three important components of such consent are information, voluntariness and capacity. ( See Model Form of Informed Consent at the end of this Chapter).

Proxy Consent ( Substitute consent )
All the above types of consent can take the shape of Proxy Consent. Parent for child, close relative for mentally unsound /unconscious patient, etc.

Situations where consent may not be obtained

  1. Medical Emergencies. The well being of the patient is paramount and medical rather than legal considerations come first.
  2. In case of person suffering from a notifiable disease. In case of AIDS/HIV positive patients, the position in India regarding its being a notifiable disease or not is not yet clear.However, in England the Public Health ( Infectious Diseases) Regulations, 1988 extend the provisions of notifiable diseases to AIDS but not to persons who are HIV positive.
  3. Immigrants.
  4. Members of Armed Forces.
  5. Handlers of food and dairymen.
  6. New admission to Prisons.
  7. In case of a person where a court may order for psychiatric examination or treatment.
  8. Under Section 53 (1) of the Code of Criminal Procedure, a person can be examined at request of the police, by use of force. Section 53 (2) lays down that whenever a female is to be examined, it shall be made only by, or under the supervision of a female doctor.

Situations Requiring Extra Caution
Doctors should keep in mind certain high risk situations which are common causes for medical negligence actions, and require extra caution.

  1. Failure to attend
    These are particularly frequent where children are concerned,especially in relation to acute abdominal emergencies,meningitis and chest infections.
  2. Retention of objects in operations sites
    Swabs, packs, instruments or towels may be left behind in the field of operation. The responsibility remains with the surgeon.
  3. Accident & Emergency Departments
    This is the most hazardous part of the hospital and senior staff must be readily available to supervise the work.
  4. Amputation of the wrong limb, digit or operation of wrong eye/tooth
    This is a common mishap. Carelessness in hospital notes, errors in pre-operative skin marking and failure to check notes against the patient in the operating theater are the common reasons for the misadventure.
  5. Emergency, Orthopedics and obstetrics
    Surgery, Orthopedics, obstetrics, plastic-surgery, and gynaecology are ‘high-risk specialities. Missed fractures (especially the scaphoid) tight plaster casts and poor results from spinal procedures are common complaints in orthopedics.In obestetrics, damage to the newborn from anoxia or forceps procedures major damage claims. Failed sterilisation / Vesectomy is again a common cause for litigation.
  6. Anesthesia
    Anesthetists along with surgeons, present a common target for litigation ; the actual administration of the anesthetic is not usually the cause of complaint, but the many ancillary responsibilities such as transfusions, injections, airways, i.v.catheters, diathermy, and hot water bottle burns may form grounds for allegations of negligence. One of the serious mishaps is the production of cerebral damage from hypoxia due to failure to maintain oxygenation during the operation.Inattention rather than failure to maintain oxygenation is the more common cause,and recent surveys have shown that inexperienced junior anesthetists are a major cause of problems.
  7. Therapeutic hazards
    These can be avoided by :
  1. Administering the right drug, the right dose, via the right route, e.g., in case of potassium chloride, insulin,antibiotics, spinal anesthesia.
  2. Informing patients / attendants of the potential risks of treatment.
  3. taking all possible steps to avoid undesirable consequences.
  1. Failure of Communication
    A doctor should inform about the patient’s medical condition in comprehensible language. IN case of reference to another doctor, it is his responsibility to communicate directly with the second doctor and not rely on the patient to carry any informal message.

What should a doctor do in the event of a medical mishap ?
When something untoward happens following a diagnostic or therapeutic procedure, or when a patient or relative makes a complaint, the doctor must take appropriate steps, some of which may be :

  1. Complete the patient’s record and recheck the written notes.
  2. Be frank enough and inform clearly of the mishap. Show that you were genuinely concerned about the unfortunate mishap. Answer all the queries of patient / relative and do not mind their repeated questioning, harsh attitude and at times even abusive language. Keep in mind the mental state of the close relatives / friends. Be compassionate. Try to remain on the scene as long as possible. Try to engage less excited attendants into discussion on the mishap and indirectly try to bring into focus the circumstances under which the mishap occurred. Doctors who are open-minded and communicative are much less likely to be complained against as patients / attendants are extremely forgiving of errors made by a friendly and concerned medical attendant.A high proportion of complaints are precipitated or escalated into legal action by a progressive breakdown of the doctor-patient communication.
  3. After these initial responses, the doctor should contact some other doctor / protection organization to seek advice. The Medical Associations, Medical Practitioners’ Society,Hospitals and Nursing Homes’ Associations, etc. could form groups / cells to advise and assist in such situations. In future Medical defence organizations could be formed to take up cases of defence on behalf of doctors against alleged medical negligence.

--------------

MODEL FORM OF INFORMED CONSENT

I ............................................. son of .......................................aged ................ resident of .....................................................being under the treatment of ....................................................(state here name of doctor/hospital/nursing home) do hereby give consent to the performance of medical /surgical /anesthesia/

diagnostic procedure of ..............................................................(mention nature of procedure / treatment to be performed, etc.) upon myself/upon .......................................................................aged ............. who is related to me as .........................................(mention here relationship, e.g. son, daughter, father, mother,wife, etc.).

I declare that I am more than 18 years of age.I have been informed that there are inherent risks involved in the treatment / procedure. I have signed this consent voluntarily out of my free will without any pressure and in my fell senses.

Place :

Date : SIGNATURE

Time : ( To be signed by parent /guardian in case of minor)

NOTES :

  1. This Consent Form should be signed BEFORE the treatment is started. These formats may be modified as per individual requirements or experiences of Hospitals / Nursing Homes.
  2. These formats should be in local language and in certain cases it would be prudent to record a proper witness to signature consent.
  3. Informed consent forms for various situations can be made for Nursing Homes / Hospitals. Help of lawyers may have to be taken. Detailed forms on Medical history can also be maintained. Keep all records in order and safely.
  4. It is important to note that written consent should refer to one specific procedure. Obtaining a ‘blanket’ consent on admission does not have legal validity.

A tertiary level of protection against outcome of litigation would be to go for Insurance cover. PROFESSIONAL INDEMNITY INSURANCE cover became available for Doctors and Medical establishments only recently, i.e. from December, 1991.
The term " indemnity " means reimbursement, to compensate.The principle of indemnity is strictly observed in liability insurances. These insurances ( e.g., Professional Indemnity Insurance ) are designed to provide the insured person protection against the financial consequences of legal liability.If the insured is legally liable to pay damages to others, the policy will indemnify him subject to the terms, conditions and limitations of the contract. Indemnity is also available in respect of legal costs awarded against the insured as well as legal costs and expenses incurred by the insured with the written consent of the insurers in the defence of settlement of claims.

PROFESSIONAL INDEMNITY INSURANCE
Salient features and terms and conditions of Professional Indemnity Insurance Policy as provided by the General Insurance Corporation of India are given hereunder :-

General Rules and Regulations :

  1. Applicability
    The policy provides insurance cover in respect of ERRORS and OMISSIONS on the part of the professionals whilst rendering their services. This applies to Doctors and Medical Establishments, Engineers, Financial Consultants, Management Consultants, Lawyers, Advocates, Solicitors and Counsels. The agreeable limits within India and including Nepal / Bhutan, for any one year/during the policy period, shall not exceed Rs. 2 crores.

  2. Standard Proposal Form
    Insurers shall obtain duly completed Standard Proposal Form from the prosecutors at inception and subsequent renewals. No cover shall be granted unless a declaration as provided for in the proposal form is obtained from the proposer to the effect that all statutory requirements relating to the business activities are complied with.

  3. Standard Policy Form
    All policies fresh and renewals issued shall be in the Standard Policy Form prescribed by the insurance company / corporation.

  4. Liabilities covered
    Policies issued under this scheme shall cover all sums which the Insured becomes legally liable to pay as damages to third party in respect of ERRORS and/or OMISSIONS on the part of the Insured whilst rendering professional services, arising out of claims first made in writing against the insured during the policy period, including legal costs and expenses incurred with the prior consent of insurer, subject always to the limits of indemnity and other terms, conditions and exceptions of the policy. It shall notbe permissible to issue any Professional Indemnity Insurance Policy with unlimited liability.

  5. Premium
    The rates of premium under the Agreement are annual rates. Full premium under the policy shall be paid at inception. It is not permissble to accept premium in installments.Turnover figure whenever required shall be as far as possible accurately assessed and declared by the proposer at inception of the policy. In case the insured anticipates any increase /decrease in turnover during the policy period such fluctuations should be immediately notified to the Insurer and necessary adjustments made. Under no circumstances it shall be permissible to adjust the premium for the turnover after expiry of the policy.

  6. Retroactive Date
    Retroactive Date is the date when the risk is first incepted under a claims made policy and thereafter renewed without break in the period of cover.

  7. Revision in Limits of Indemnity
    No revisions ( increase / decrease ) shall be allowed in the limits of Indemnity during the currency of the policy.For any upward revision in indemnity limits at renewals, the retroactive date shall be the inception date of the Policy renewal, so far as the increased limits are applicable.

  8. Compulsory Excess
    All policies issued under the Agreement shall be subject to compulsory excess of certain fixed percentage of the limit of indemnity per any one accident or any one year subject to a minimum of Rs. 1,000 and maximum of Rs. 1,00,000 ( Rupees One Lakh Only) . The Insured shall bear this Compulsory Excess which is applicable to both property damage claims and death /bodily injury claims inclusive of defence costs arising out of any one accident. This excess is not applicable for Doctors and Medical Practitioners.

  9. Voluntary Excess
    The following discounts on the premium may be allowed for Voluntary Excess opted by the Insured except for policy for Doctors and Medical Practitioners. But these are applicable in case of insurance policies obtained by Hospitals and Medical Establishments.

Voluntary Excess (percentage) of limit of Indemnity per any one Accident

Discount (%)

1

2.5

2

5.0

4

7.5

6

10.0

8

12.5

10

15.0

The Voluntary Excess shall be in addition to the Compulsory Excess and shall be applicable to both property damage claims and / or death / bodily injury claims inclusive of defence costs arising out of any one accident.

10. Short Period Premiums
It shall not be permissible to issue Policies for periods more than 12 months. The following short period scale of premium shall apply to (i) policies issued for periods less than 12 months and (ii) policies cancelled during the currency at the request of the insured subject to no claims :

Period

Rate

Not exceeding one month

1/4th of the annual premium

Not exceeding two months

3/8th of the annual premium

Not exceeding three months

1/2th of the annual premium

Not exceeding four months

5/8th of the annual premium

Not exceeding six months

3/4th of the annual premium

Exceeding six months

Full annual premium

For annual policies cancelled during the currency at the request of the insured,premium should be adjusted at the Short Period Scales for the actual period of cover subject to no claims.No refund is permissible in case of any claim under the policy.
The short period premium is subject to the minimum premium in the Rating Schedule.

DOCTORS AND MEDICAL PRACTITIONERS (GUIDELINES)
The policy will indemnify any act committed by the insured, who shall be a Registered Medical Practitioner, giving rise to any legal liability to Third Parties. The Insured includes the policy holder and his qualified assistants or employees named in the proposal.
The act has to be committed during the period of insurance commencing from the retroactive date.
In the normal course all claims for compensation have to be legally established in a court of law. However, insurers may arrive at compromised settlement if prima-facie liability exists under the policy.
Jurisdiction applicable will be Indian Courts.
The limit of indemnity granted under the policy for any one accident or any one year (per accident per policy year ) will be identical.
No short period policies are permitted. However, in case of cancellation of the policy by the Insured short period scale rates as provided for will be applicable.

Registered Medical Practitioners shall be classified as :-

(1) Physicians (2) Pathologists (3) Oncologists (4) Cardiologists (5) Psychiatrists (6) Radiologists or Roentgenologists (7) General Surgeons (8) Plastic Surgeons (8) Orthopaedic Surgeons (10) Urologists (11) Abdominal Surgeons (12) Thoracic Surgeons (13) Neuro-Surgeons (14) Cardio-Vascular Surgeons (15) Otorhinolaryngologists (16) Protologists (17) Ophthalmologic Surgeon (18) Ophthalmologic Physician (19) Obstetrician & Gynaecologist (Excluding Surgery) (20) Physician & non-specialist (21) Other Practitioner-describe Surgeon. fully.

Insurance Rating for Doctors and Medical Practitioners
[To be charged on Any One Year (AOY) limit]

1. (a) Physicians without dispensing and other facilities General Pathologist/Radiologist

(b) General Physicians with facilities like dispensing /pathological/ radiological etc

Rs. 0.5 per 1000 on AOY limit.

7.5% additional premium for each facility subject to maximum of 20%.

2. (a) Specialists/Consulting Physician (Non-surgical)

(b) For other facilities (Specify) such as E.C.G.,X-ray,Scanning, Sonography etc.

Rs. 1.0 per 1000 on AOY limit

7.5% extra for each facility subject to facility subject to maximum of 20%.

3. (a) Surgeons excluding specialists in Plastic Surgery,Lithotripsy Dentists & similar extra corporeal methods of treatment would fall within this category.

(b) For other facilities (specify) such as E.C.G.,X-Ray,Scanning,Sonography etc.

Rs. 2.0 per 1000 on AOY limit

7.5% extra for each facility subject to a maximum of 20%.

4. (a) Diagnostic Centres

(b) For other facilities (specify) such as E.C.G.,X-Ray,Scanning,Sonography etc

Rs. 1.0 per 1000 on AOY limit.

7.5% extra for each facility subject to a maximum of 20%.

5. (a) Surgeons (Plastic Surgery) Anesthetics.

(b) For other facilities (specify) such as E.C.G.,X-Ray,Scanning,Sonography etc.

Rs. 3 per 1000 on AOY limit

7.5% extra for each facility subject to a maximum of 20%.

Minimum Premium Rs. 100.
No Compulsory or Voluntary Deductibles are applicable.

Insurance Rating for Medical Establishments
Rs. 3 per 1000 on AOY limits plus
Rs. 5 per each in patient plus
Rs. 1 per out-patient.
(Number of patients to be as per previous year’s record or the anticipated number of patients during the year whichever is higher.)

Radioactive treatment Additional premium of 15% (other than X-ray) on total premium.

The indemnity in respect of any one person would be limited to 25% of the Any One Year (AOY) limit under the policy.

Minimum Premium under one policy : Rs. 1000.

Compulsory Excess and Voluntary Excess are applicable.

Exclusions:

1. No liability shall attach to the Company in respect of -

  1. Any criminal act or any act committed in violation of any law or ordinance :

  2. services rendered while under the influence of intoxicants or narcotics ;

  3. the performance by dentists and dental surgeons of :(1) general anaesthesia; or (2) any procedure carried out under general anaesthesia unless performed in a Hospital :

  4. the use of drugs for weight reduction ;

  5. cosmetic surgery ;

  6. third party public liability ;

  7. claims arising from any condition directly or indirectly caused by or associated with Human T-Cell Lymphotropic Virus Type III (HTLV III) or Lymphadenopathy Associated Virus (LAV) of the mutants derivaties or variations thereof or in any way related to Acquired Immune Deficiency Syndrome (AIDS) or any Syndrome or condition of a similiar kind howsoever it may be named.

2. The Policy does not cover liability -

  1. assumed by the Insured by agreement and which would not have attached in the absence of such agreement ;

  2. arising out of deliberate, wilful or intentional non-compliance of any Statutory provision ;

  3. arising out of loss of pure financial nature such as loss of goodwill, loss of market, etc ;

  4. arising out of all personal injuries such as libel, slander,false arrest, wrongful eviction, wrongful detention.,defamation, etc. and mental injury, anguish or shock;

  5. arising out of fines,penalties, punitive or exemplary damages ;

  6. directly or indirectly occasioned by happening through or in consequence of war, invasion, act of foreign enemy, hostilities (whether war be declared or not),civil war, rebellion, revolution, insurrection or military or usurped power ;

  7. directly or indirectly caused by or contributed by :-

  1. ionising radiations or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel;

  2. the radioactive, toxic , explosive or other hazardous properties of any explosive nuclear assembly or nuclear component thereof;

  1. arising out of genetic injuries caused by X-ray treatment/diagnosis or treatment /diagnosis with radioactive substances, in respect of professional services rendered by the Insured prior to the Retroactive Date in the Schedule.

  2. the deliberate conscious or intentional disregard of the insured’s technical or administrative management of the need to take all reasonable steps to prevent claims ;

  3. injury / death to any person under a contract of employment or apprenticeship with the Insured when such injury / death arises out of the execution of such contract.

It may be noted that the amount paid as premium for obtaining a Professional Indemnity Insurance Policy qualifies as deductible expense under Sec. 36 of the Income Tax Act.
The doctors /hospitals may contact the Insurance Companies or their Agents for obtaining more information on the subject.

Glossary of terms    The meaning of legal terms are being restricted to such  terms only as concern the Medical Profession.

DEFINITIONS

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.

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.

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.

COMMENTS
Consideration means fees /payment. Fees may have been fully paid in cash or cheque, or undertaking that it will be paid, which is accepted by the doctor/hospital. The fees may have been given partly (as advance) with the understanding that the remaining bill will be paid subsequently. The payment may be done by the patient himself, or by someone else for the patient, e.g., father for his child, husband for wife, any person for someone.
A person who receives medical treatment in Government hospital or charitable hospital free of cost is not a consumer under the Act.
In case of death of patient who is a consumer, legal heirs (representatives) of the deceased will be considered as "consumer". If the payment has been made by any person who is not a legal heir of the deceased he too will be considered as "consumer."
The three words used above (deficiency, person, service) explained under this act are as follows :

Deficiency means -
Any fault, imperfection, shortcoming or inadequacy in the quality, nature, and manner of the performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

COMMENTS
Deficiency/negligence means fault, imperfection, shortcoming or inadequacy in quality, nature and manner of performance of the medical service rendered by a hospital and /or member of the medical profession.

Person includes -

  • a firm whether registered or not;

  • a Hindu undivided family;

  • a co-operative society

  • every other association of persons whether registered under the Societies Registration Act, 1860 or not.

Service means -
Service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board of lodging or both, housing construction, entertainment, amusement or the purveying of news or other information but does not include the rendering of any service free of charge or under a contract of personal service.
Although medical profession has not been included under the term "service" but in many of the decided cases medical services have been deemed to be included in the definition of service in view of the expression ; ‘service means service of any description.’

Charge means -
Fee / payments with element of profit making motive involved. As Government hospitals/certain charitable hospitals do not charge fees, hence such services rendered are exempted from this Act. In certain situations where hospitals are charging nominal stamp fees, contributions are made by Govt.employees to the CGHS , payments are made for cottage wards, diagnostic tests are done under auto-finance scheme, such services do not have any element of profit motive. Hence the persons availing of these services are not consumers and the services rendered do not fall under the Act, as there is no consideration paid for hiring of such services.
The second category of "service" exempt under this Act are those services which are rendered under a contract of personal service.
It has been held by the National Consumer Disputes Redressal Commission ( National Commission) on April 21,1992 in the case of Cosmopolitan Hospitals and Anr. v. Vasantha P. Nair [ 1 (1992) CPJ 302 (NC) ] that the medical treatment rendered to a patient by a private doctor or clinic for consideration is clearly a service falling within the ambit of section 2 (1) (o) of the Consumer Protection Act. It is not a contract of personal service but a contract to render professional service. It is now well settled that hospital authorities rendering service for consideration are liable to the patient for injury caused by him by the negligence or other fault of the doctors, surgeons, nurses, anesthetists and other members of the hospital in the course of their work. The liability of the hospital authorities extends to the faults of doctors and other employees whether their employment is permanent or temporary or casual, paid or honorary, whole or part-time as happens in the case of visiting physicians/surgeons.

CONSUMER DISPUTES REDRESSAL AGENCIES
Redressal Forums have been established at three different levels :-

- "District Forum" by State Government. At least one in each district or in certain cases one District Forum may cover 2 or more districts.
- "State Commission" by State Government.

- "National Commission" (National Consumer Disputes Redressal Commission ) by Central Government.

District Forum
This shall consist of :

  1. a person who is, or has been, or is qualified to be a District Judge, its President

  2. two other members shall be persons of ability, integrity and standing and have adequate knowledge or experience or have shown capacity, in dealing with problems relating to economics, law, commerce,accountancy, industry, public affairs or administration,one of whom shall be a woman.

Jurisdiction of the District Forum
The District Forum shall have jurisdiction to entertain complaints where the value of services and compensation claimed does not exceed Rupees Five Lakhs.

Manner in which complaint shall be made
A complaint may be filed with a District Forum by -

  1. the consumer to whom such service is provided or is agreed to be provided;

  2. any recognised consumer association, whether the consumer to whom the service is provided or is agreed to be provided is a member of such association or not ;

  3. one or more consumers, where there are numerous consumers having the same interest, with the permission of the district forum, on behalf of or for the benefit of all consumers so interested ;

  4. The Central or the State Government.

Procedure on receipt of Complaint

The District Forum shall on receipt of a complaint -

  1. refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of 30 days or such extended period not exceeding 15 days as may be granted by the District Forum ;

  2. Where the opposite party, on receipt of a copy of the complaint, denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District Forum, the District Forum shall proceed to settle the consumer dispute,

(i) On the basis of evidence brought to his notice by the complainant and the opposite party, where the opposite denies or disputes the allegations contained in the complaint ; or

(ii) On the basis of evidence brought to its notice by the complainant where the opposite party omits or fails to take any action to represent his case within the time given by the Forum ;

(iii) Where the complainant or his authorised agent fails to appear before the District Forum on such day, the District Forum may in its discretion either dismiss the complaint in default or if a substantial portion of the evidence of the complainant has already been recorded, decide it on merits. Where the opposite party or its authorised agent fails to appear on the day of hearing, the District Forum may decide the complaint ex-parte.

(iv) Where any party to a complaint to whom time has been granted fails to produce his evidence or to cause the attendance of his witnesses or to perform any other act necessary to the further progress of the complaint, for which time has been allowed, the District Forum may notwithstanding such default :-

(a) If the parties are present, proceed to decide the complaint forthwith ; or

(b) if the parties or any of them is absent, proceed as mentioned above in (b) (iii) ;

(v) The District Forum may, on such terms as it may think fit at any stage, adjourn the hearing of the complaint but not more than one adjournment shall ordinarily be given and the complaint should be decided within 90 days from the date of notice received by the opposite party where complaint does not require analysis or testing of the goods and within 150 days if it requires analysis or testing of the goods.

Findings of the District Forum
If, after the proceedings, the District Forum is satisfied that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to do one or more of the following things :

  1. To return to the complainant the charges paid.

  2. Pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party.

  3. To remove the deficiency in the services in question.

  4. To provide for adequate costs to parties.

Appeal against orders of the Dist. Forum
Any person aggrieved by an order made by the District Forum may appeal against such order to the State Commission within a period of 30 days from the date of the order. The State Commission may entertain an appeal after 30 days if it is satisfied that there was sufficient cause for not filing it within that period.

State Commission
It shall consist of -

  1. a person who is or has been a Judge of a High Court , who shall be its President ;

  2. two other members ( as for District Forum).

Jurisdiction of the State Commission

The State Commission has jurisdiction to entertain -

  1. Complaints where the value of services and compensation claimed exceeds rupees 5 lakhs but does not exceed rupees 20 lakhs;

  2. appeals against the orders of any District Forum within the state ;

  3. revision petitions against the District Forum.

Procedure to be followed by State Commission

Same as for District Forum.

Procedure for hearing appeals
The State Commission may, on such terms as it may think fit and at any stage, adjourn the hearing of appeal, but not more than one adjournment shall ordinarily be given and the appeal should be decided within 90 days from the first date of hearing.

Appeals against orders of State Commission
Any person aggrieved by an order made by the State Commission may appeal against such order to the National Commission within a period of 30 days. The National Commission may entertain an appeal after 30 days if it is satisfied that there was sufficient cause for not filing it within that period

National Commission
This shall consist of -

  1. a person who is or has been a Judge of the Supreme Court, who shall be its President. (No appointment under this clause shall be made except after consultation with the Chief Justice of India) .

  2. 4 other members ( qualifications : As for District Forum /State Commission ).

Jurisdiction of the National Commission
The National Commission shall have jurisdiction -

(a) to entertain

(i) complaints where the value of services and compensation claimed exceeds rupees 20 lakhs ; and

(ii) appeals against the orders of any State Commission.

(b) to entertain revision petition against the State Commission.

Procedure to be followed by the National Commission
A complaint containing the following particulars shall be presented by the complainant in person or by his agent to the National Commission or be sent by registered post, addressed to the National Commission :-

  1. the name, description and the address of the complainant;

  2. the name, description and address of the opposite party or parties, as the case may be, so far as they can be ascertained ;

  3. the facts relating to the complaint and when and where it arose ;

  4. documents in support of the allegations contained in the complaint ;

  5. the relief which the complainant claims.

The remaining procedure and the procedure for hearing the appeal is similar to that for State Commission.

Appeal against orders of the National Commission
Any person, aggrieved by an order made by the National Commission, may appeal against such order to the Supreme Court within a period of 30 days from the date of the order.
The Supreme Court may entertain an appeal after 30 days if it is satisfied that there was sufficient cause for not filing it within that period.

Limitation Period
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.
In case there are sufficient grounds for not filing the complaint within such period, extension may be granted.

Dismissal of frivolous or vexatious complaints
Where a complaint instituted before the District Forum, the State Commission or the National Commission, as the case may be, is found to be frivolous or vexatious, it shall, for reasons to be recorded in writing, dismiss the complaint and make an order that the complainant shall pay to the opposite party such cost, not exceeding 10,000 rupees, as may be specified in the order.

 
 
 

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