CASE OF MARGESH K. PARIKH (MINOR) Vs. DR. MAYUR S. MEHTA ( As published in UP Nursing Home quarterly News letter) By Manish Mehrotra, Advocate.

The above decision of the Hon’ble Supreme Court on Medical Negligence reported in (2011) 1 SCC 31; is an important case on which the present article is based. It is a case where the patient ( a minor) was admitted in the hospital with complaint of loose motions. After some laboratory tests the doctor put him on medication and injected Glucose Saline through his right shoulder. This did not improve the condition of the minor child and who started vomiting and having loose motions more frequently. In the evening the parents of the minor patient noticed swelling in the toe of his left foot which was turning black and accordingly child was sent to one Dr. “C” who carried a small procedure and administered certain medicine. Unfortunately later the child developed gangrene and ultimately his left leg was amputated below knee. The patient’s guardian filed a case of compensation for Rs. 10 Lac. The State Consumer Commission did not accept the plea of the doctor and awarded a compensation of Rs. 5 Lacs against the doctors with interest thereupon. However, during the case proceedings the State Consumer Commission noticed that the doctor had withheld the medical records / case papers for six long years and also did not file any affidavit before it of the treating doctor. The National Consumer Commission on appeal by the treating doctors set aside the order of the State Commission holding the doctor not guilty of medical negligence. However, keeping in view the detailed findings of the State Commission the Hon’ble Supreme Court allowed the patient’s appeal and set aside the decision of the National Consumer Commission while remanding it back and held as under:- i) The conduct of the doctors in not producing case sheet within time and deferring it for six long years could not be ignored by the National Consumer Commission and has been pleased to observe that the National Commission was duty bound to pay serious attention on the doctor’s failure to produce the case papers for six long years and call upon him to explain why the record pertaining to the treatment given to the appellant was held back for so long. ii) The case papers / bed tickets maintained by the hospital would have disclosed the line of treatment. iii) Equally intriguing was the hospital’s failure to file the Affidavit of the treating doctor and such types of lacuna can not be ignored by the courts. iv) These omissions on the part of National Commission are extremely serious and have resulted in failure of justice (Refer paragraph – 13 of the judgement). In view of the above important decision of the Hon’ble Supreme Court; as I have always emphasised during my talks in the UPNHA conferences that transparent hospital records must be maintained by the hospital / doctors and should be produced in court at the first available opportunity to give a clear picture of the details on diagnosis and treatment administered to the patient.

Alternative Dispute Resolution – Arbitration, Mediation, Conciliation (Concept; Purpose and Application) ( As Speaker at Refresher Training Programme for Additional District Judges in Institute of Judicial Training, Lucknow. U.P. on 20-7-2012)

************* CONCEPT: In 1927 an English Judge Justice Marten of Bombay High Court said “It (arbitration) is indeed a striking feature of ordinary Indian life. And I would go further and say that it prevails in all ranks of life to a much greater extent than is the case in England. To refer matters to a Panch is one of the natural ways of deciding many a dispute in India”. Corpus Juris Secundum ( Volume VI) defines an arbitration as under:- “ The settlement of controversies by arbitration is a legally favoured contractual proceeding of common law origin by which the parties by consent submit the matter for determination to a tribunal of their own choosing on substitution for the tribunals provided by the ordinary process of the law” CODIFIED LAW IN INDIAN CONTEXT FOR ALTERNATIVE DISPUTE RESOLUTION: The history of codified law on Arbitration is India is Indian Arbitration Act, 1899; Indian Arbitration Act, 1940 and now Arbitration and Conciliation Act, 1996 each enacted keeping in view the development of law in the sphere and keeping in pace with the requirements in law with changing times. PURPOSE OF LAW Arbitration and Conciliation Act, 1996 is an Act to consolidate and amend the law, relating to domestic Arbitration and International Commercial Arbitration. Untied Nations Commission on International Trade Law (UNICITRAL) adopted the UNICITRAL Model law on International Commercial Arbitrations in 1985; thereafter the General Assembly of the United Nations had recommended that all countries give DUE CONSIDERATION TO THE SAID Model Law, in view of desirability of uniformity of law of arbitral procedures and the specific needs of international commercial arbitration practice. Keeping in view the international norms our Parliament enacted the Arbitration and Conciliation Act, 1996. The scope of the topic will be incomprehensive if we do not notice the statement and objects of the legislature which is the bedrock of the New Arbitration law in India. Quote : 1) To comprehensively cover international and commercial arbitration and conciliation as also domestic arbitration and conciliation; 2) To make provision for an arbitral procedure which is fair, efficient and capable of meeting the needs of the specific arbitration. 3) To provide that the arbitral tribunal gives reasons for its arbitral award; 4) To ensure that the arbitral tribunal remains within the limits of its jurisdiction; 5) To minimize the supervisory role of Courts in the arbitral process; 6) To permit an arbitral tribunal to use mediation, conciliation or other procedures during the arbitral proceedings to encourage settlement of disputes; 7) To provide that every final arbitral award is enforced in the same manner as if it were a decree of the Court; 8) To provide that a settlement agreement reached by the parties as a result of conciliation proceedings will have the same status and effect as an arbitral award on agreed terms on the substance of the dispute rendered by an arbitral Tribunal; and 9) To provide that, for purposes of enforcement of foreign awards, every arbitral award made in a country to which one of the two international Conversations relating to foreign arbitral awards to which India is a party applies, will be treated as a foreign award. If we cull out the settled law from various Judicial pronouncements it would be clear that settlement of disputes between the parties has a tradition in this country as I had pointed out in the beginning of this article. We cannot deny the overburden of litigation in courts. It is also true that the Judicial System prevalent in courts is governed by procedures prescribed by various enactments and several of which are technical and obstruct the adjudication resulting in delays. We have to appreciate that the litigant of today is often frustrated and exhausted due to delays. All his enthusiasm of his rights enforcement dies with time and soon comes a time when he just wants the decision irrespective of its outcome; this I have clearly observed as a lawyer in last two decades of my practice. Therefore I feel that the purpose of alternative mechanism for resolution of disputes has been evolved for resolution of disputes through the process of Arbitration; Conciliation and Mediation to ensure fair and efficient, speedy trial giving finality to the decision. Russel on Arbitration is one of the Classic legal reference works. Courts and Practitioners and all those involved in arbitrations use this as one of the most powerful reference tool. Russel on Arbitration (23rd Edition) states as under:- Arbitration Features:- • Party Autonomy is recognized as paramount and court intervention is expressly excluded except as specified in the Act; • A general duty is imposed on the arbitral tribunal to act fairly and impartially and to adopt procedures that avoid unnecessary delays or expense. • The object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense. • The parties should be free to agree how their disputes are resolved subject only to such safeguards as are necessary in public interest; and • Intervention by courts should be restricted. APPLICATION OF LAW Looking to the significance and necessity of Alternative Disputes Redressal ; the Civil Procedure Code (by Amending Act, 1999) carried out an amendment and inserted Section 89 of the Civil procedure Code; which reads as under:- Quote: S. 89. Settlement of disputes outside the Court – (1) Where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the court may reformulate the terms of a possible settlement and refer the same for – (a) arbitration; (b) conciliation; (c) judicial settlement including settlement through Lok Adalat; or (d) mediation. (2) Where a dispute has been referred – (a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply as if the proceedings for arbitration of conciliation were referred for settlement under the provisions of that Act; (b) to Lok Adalat, the court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of Section 20 of the Legal Services Authority Act, 1987 (39 of 1987) and all other provisions of that Act shall apply in resp9ect of the dispute to referred to the Lok Adalat; (c) for judicial settlement, the court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 (39 of 1987) shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act; (d) for mediation, the court shall effect a compromise between the parties and shall follow such procedure as may be prescribed. A bare perusal of Section 89 of CPC demonstrates that in all Civil litigations the courts have to encourage settlement of disputes outside the court. While discussing about the philosophy behind Section 89 of CPC; reference to Justice Malimath Committee report is a must “If a law is enacted giving legal sanction to such machinery for resolution of disputes and resort thereto is made compulsory, much of the inflow of commercial litigation in regular civil courts gradually moving up hierarchically would be controlled and reduced.” The Malimath Committee while elaborating the importance of conciliation also suggested “the senior members of the bar, amongst others are invited for personal discussions by the District Judge; Additional District Judges …….. with a view to impressing upon them ……..their willing participation in settlement…..which will result in saving time and sparing them of the trouble of calling witnesses, subjecting them to long drawn examination, cross examination and arguments.” ARBITRATION ACT, 1996 ( relevant provisions) Some of the provisions of the Arbitration Act, 1996 need a mention which would throw light on the application of law qua the courts and how they are to give effect to the philosophy of the Act. Section 5 of the Arbitration and Conciliation Act, 1996 (herein after referred to as Act) provides that “Notwithstanding anything contained in any other law for the time being in force, in matters governed by this part, no judicial authority shall intervene except where so provided in this part”. The mandate of Section 5 was considered by the Hon’ble Supreme Court of India in the case of P. Anand Gajapathi Raju Vs. P.V.G. Raju AIR 2000 SC 1886 where in the Hon’ble Court held:- “Section 5 brings out clearly the object of the New Act, namely, that of encouraging resolution of disputes expeditiously and less expensively and when there is an arbitration agreement, the courts intervention should be minimal.” Section 8 of the Act mandates that: A Judicial Authority before which an action is brought in a matter which is the subject matter of an arbitration agreement shall, if the party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. The Hon’ble Supreme Court while interpreting the provision of Section 8 in the case of P. Anand Gajapati Raju (supra) held “The language of Section 8 is preemptory. It is, therefore, obligatory for the court to refer the parties to arbitration in terms of their arbitration agreement”. The next section dealing with courts jurisdiction is Section 9 of the Act, which provides:- A party may, before or during arbitral proceedings or at any time after making of the arbitral award but before it is enforced may apply to a court for interim measure of protection in respect of the preservation, interim custody or sale of any goods which are subject matter of arbitration agreement; securing the amount in disputes in the arbitration and so on and so forth. The decision of the Hon’ble Supreme Court of India in the Case of Sundaram Finance Ltd Versus NEPC India Ltd 1999 (2) SCC 479 is the lead case law giving all principles for application of Section 9 by the courts. In this case the Hon’ble Supreme Court also held that when an application under Section 9 is filed by a party, there has to be a manifest intention on part of the applicant to take recourse to the arbitral proceedings. Then finally post award stage in court is contained in Section 34 of the Act, when a party has recourse to a court against an arbitral award on the very limited grounds as provided for. The scope of the post award challenge is not the subject matter of this seminar ; suffice to say that there are catena of judicial decisions which define the limited grounds of interference in an arbitral award by the Courts primarily because it is a decision of the choice of forum of the parties and that an arbitral award should normally assume finality subject to the basic tenet of compliance of principles of natural justice by the Arbitral tribunal. All of which is in consonance behind the basic principle of an Alternative dispute Resolution its concept and its purpose.

(Lecture delivered at Judicial Training Institute, Lucknow to Presidents & members of consumer Forum U.P. on 26-7-2011)

Medical Negligence – Dimensions in Law* By Manish Mehrotra* (Advocate) High Court,Lucknow Consumer Protection Act, 1986 a beneficial piece of legislation came in India to sub-serve the interest of a consumer; both of goods and services. The statement and objects of the Act being to provide for better protection of the interests of Consumers. Section 2; i.e. the “definition clause” defines a “Complainant” “Consumer” and so on and so forth. Section 2 (1)(O) also defines “Service” in which interalia are included the provision / facilities in connection with banking, finance insurance, entertainment, etc. but it states that it does not include the rendering of any service “free of charge” or under a “contract of personal service”. In the year 1996, in the case of India Medical Association Vs., V.P. Shanta 1995 (6) SCC 651, the question which arose before Hon’ble Supreme Court of India – whether and, if so in what circumstances a medical practitioner can be regarded as rendering “service” under Section 2 (1) (O) of the Consumer Protection Act, 1986. It is worth a mention that there were divided opinions of various High Courts and the Hon’ble National Commission Dispute Redressal Commission on the question which came to be settled finally by the Hon’ble Supreme Court of India in this case where it was ultimately held that medical professional / hospitals / Nursing Homes, Health Centres providing consultation, diagnosis and treatment would be deemed to be rendering service to a consumer within the meaning of Section 2 (1) (O) of the Consumer Protection Act, 1986. It was also held that service rendered free of charge would stand excluded and that the relationship between patient and medical practitioner is one arising out of “contract for service” and not a “ contract of service”. There has been a march and development of law since then in the realm of medical negligence jurisprudence in various spheres pertaining to medical negligence litigation. To start with as was relied upon by the Hon’ble Supreme Court in the case of V.P. Shanta referring to the decision in the case of Laxman Bal Krishna Joshi Vs. Thrimbak Babu Godbole AIR 1969 (SC) 128. “The duties which a doctor owes to his patient are clear. A person who held himself ready to give to give medical advice and treatment impliedly undertakes that he is possessed all skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties viz a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of the treatment. A breach of any of those duties gives a right of action for negligence to the patient. “A practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very law degree of care and competence judged in the law of particular circumstances of each case is what the law requires. The doctor no doubt has a discretion in choosing treatment which he propose to give the patient and such discretion is relatively ambler in cases of emergency”. This is the basic proposition of law which is still good law and the foundation on the basis of which a medical negligence case has to be decided by a consumer for a. This proposition of law has been consistently followed by Hon’ble Supreme Court in all its later pronouncements including the famous cases of Indian Medical Association 1995 (6) SCC 651; Jacob Mathew’s case 2005 (6) SCC 1; Martin F. D’souza’s case 2009 (3)SCC 1 and Batra Hospital Case 2010 (3) SCC 480 which would be discussed herein after. Jacob Mathew Vs. State of Punjab 2005 (6)SCC 1 is yet another land mark judgment on the aspect of medical negligence by the Apex Court of India. It needs to be emphasized that in this judgment a new dimension was given by the apex court and the question primarily dealt was pertaining to Section 304-A of the Indian Penal Code on account of death due to criminal medical negligence. Still however, there was a detailed pronouncement by the Hon’ble apex court pertaining to tortuous liability of doctors in cases of medical negligence. Some of the important aspects have been considered in paragraph – 18, 21, 22, 26 and 48 of the said judgment and which needs to be definitely referred to in this article. Quote 18. “In the law of negligence…………………………………………………. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. ……………………………………..It is not necessary for every professional to posses the highest level of expertise in that branch which he practices. In Michael Hyde and Associates Vs. J.D. Williams & Co. Ltd, Sedley, L.J. said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable.” (Charlesworth & Percy, ibid., para 8.03). 21. “The degree of skill and care required by a medical practitioner is so stated in Halsbury’s Laws of England (4th Edn., Vol. 30, Para 35): “35. The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men. 22. “In the opinion of Lord Denning, as expressed in Hucks V. Cole a medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.” 26. “ No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Else it would be counter-productive. Simply because a patient has not favorably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur.” 48. “We sum up our conclusions as under: (1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: “duty”, “breach”, and “resulting damage”. (2) Negligence in the context of the medical professional necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or result to that practice or procedure which the accused followed. When it come to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is the time of the incident) at which it is suggested it should heave been used. (3) A professional may be held liable for negligence on one of the two findings; either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. (4) The test for determining medical negligence as laid down in Bolam case, WLR at p. 586 holds good in its applicability in India. (5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence., the degree of negligence should be much higher, i.e., gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution. (6) The word “gross” has not been used in Section 304-A IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be “gross”. The expression “rash or negligent act” as occurring in Section 304-A IPC has to be read as qualified by the word “grossly”. (7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent. (8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa louquitur has, if at all, a limited application in trial on a charge of criminal negligence.” That then came the judgement in the case of Martin F. D’souza Vs. Mohd. Ishfaq 2009 (3) SCC 1; in this case the Hon’ble Supreme Court of India had given a new dimension while holding para 117 that whenever a consumer complaint is received against a doctor or hospital by the Consumer For a or by the criminal court then before issuing a notice to the doctor or the hospital they should first refer the matter ot a competent doctor or committee of doctors specialized in the field relating to which the medical negligence is to be attributed. However, on this aspect a later judgment of the Hon’ble Supreme Court of India in the case of V. Krishna Rao Vs. Nikhil Super specialty Hospital 2010 (5) SCC 513 has overruled the obligation of the Consumer For a to send the matter to a committee of doctors before issuance of the notice. The year 2010 saw further development and reiteration of the parameters and guidelines to be kept in mind by the Consumer For a while deciding medical negligence cases in the case of Kusum Sharma Vs. Batra Hospital 2010 (3) SCC 480. The patient developed high blood pressure in the year 1989; was obese and complained of swelling and breathlessness who was referred to Batra Hospital at the behest of Indian Oil Corporation, the employer. Amongst various tests Ultrasound and C.T. Scan it was diagnosed that there was a smooth surface of mass in the left adrenal and that surgery was imperative. The tumor concerned was also found to be malignant ;however surgery was duly performed. As alleged during the surgery the body of the pancreas was damaged and which was treated and drain was fixed to drain out the fluids. Unfortunately the patient died on account of “pylogenic meningitis” the contention of the complainant obviously being pancreatic abscess was evident as a result of pancreatic injury during the surgery.The National Commission did not find any merit in the allegations of the patient and dismissed the same primarily for want of adequate evidence. On the contrary on the basis of medical literature and evidence of eminent doctors of AIMS it was confirmed that the treating doctors had not committed any negligence. It was also found that all the standard medical protocol was duly followed and that in the circumstances no malafides can be attributed against the hospital. The court referred to in details the case sheet; medical literature; and the discharge summary. Legal principles reiterated:- the law of medical negligence has yet again been dealt quite exhaustively by the Hon’ble Supreme Court of India in this case ; both international as well as Indian; and on scrutiny of the leading cases of medical negligence both in our country and other countries especially the United Kingdom the Apex Court has reiterated that the courts are to keep in mind while deciding the cases of medical negligence ; the following principles:- “ Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his / her suffering which did not yield the desired result may not amount to negligence. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a took for pressurizing the medical professionals / hospitals, particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.” ON PROCEDURE: The basic procedure as contemplated under the consumer Protection is on in the nature of “summary procedure” i.e no detailed trial has to be done as is done in a civil suit. But never the less in specific reference to the medical negligence cases this issue came up for consideration of the Hon’ble Supreme Court in the case of J.J. Merchant (Dr) v. Shrinath Chaturvedi,(2002) 6 SCC 635, at page 645 : Qoute: “19 it is true that it is the discretion of the Commission to examine the experts if required in an appropriate matter. It is equally true that in cases where it is deemed fit to examine experts, recording of evidence before a Commission may consume time. The Act specifically empowers the Consumer Forums to follow the procedure which may not require more time or delay the proceedings. The only caution required is to follow the said procedure strictly. Under the Act, while trying a complaint, evidence could be taken on affidavits [under Section 13(4)(iii)]. It also empowers such Forums to issue any commission for examination of any witness [under Section 13(4)(v)]. It is also to be stated that Rule 4 in Order 18 CPC is substituted which inter alia provides that in every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence. It also provides that witnesses could be examined by the court or the Commissioner appointed by it. As stated above, the Commission is also empowered to follow the said procedure. Hence, we do not think that there is any scope of delay in examination or cross-examination of the witnesses. The affidavits of the experts including the doctors can be taken as evidence. Thereafter, if cross-examination is sought for by the other side and the Commission finds it proper, it can easily evolve a procedure permitting the party who intends to cross-examine by putting certain questions in writing and those questions also could be replied by such experts including doctors on affidavits. In case where stakes are very high and still a party intends to cross-examine such doctors or experts, there can be video conferences or asking questions by arranging telephonic conference and at the initial stage this cost should be borne by the person who claims such video conference. Further, cross-examination can be taken by the Commissioner appointed by it at the working place of such experts at a fixed time.” Summing up:- Thus concluding Consumer Protection Act is a beneficial piece of legislation which came in India to sub-serve the interest of a consumer; both of goods and services. Medical professional / hospitals / Nursing Homes, Health Centers providing consultation, diagnosis and treatment would be deemed to be rendering service to a consumer within the meaning of Section 2 (1) (O) of the Consumer Protection Act, 1986. A practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very law degree of care and competence judged in the law of particular circumstances of each case is what the law requires. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. Medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. No sensible professional would intentionally commit an act or Simply because a patient has not favorably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable. -End of Article-