Times of India
21 June 2010
By S Pushpavanam

Ruling returns power to consumer panels in medical negligence cases
The Supreme Court has recently ruled that consumer courts need not refer medical negligence cases to a committee of doctors for expert opinion anymore. This has removed a huge obstacle for consumers filing medical negligence cases. The new ruling in V Kishan Rao vs Nikhil Super Speciality Hospital even says that the earlier ruling directing consumer bodies to refer cases to experts is incorrect.

In February 2009, Justice Markandey Katju and Justice RM Lodha of the Supreme Court ruled in favour of the doctor in Martin D’Souza vs Mohammed Isfaq. The court held that Dr Martin had not been negligent and said consumer forums should refer medical negligence complaints to a committee of doctors. It also added that doctors’ time was being wasted and they were being harassed by frivolous complainants. Only when prima facie negligence was reported could the complaint be taken up by district forums, ruled the court. Apart from causing delays, as the forums were referring old and new complaints to the committee, the direction almost granted immunity to doctors.

The district consumer forums refused to accept complaints of medical negligence. In Tamil Nadu, the committee of doctors that was formed to scrutinise consumer complaints on medical negligence in each district responded to all cases with the line: “On perusal of records, it was found that there was no medical negligence on the part of the doctor.”

This ruling raised a number of questions. First, when the issue of forming a committee was not raised in court, could a general direction be given that affects all medical negligence cases? Could the Supreme Court legislate when formation of such a committee was not mentioned in the Consumer Protection Act? Could the decision on medical negligence be taken by a committee of government doctors when the Consumer Protection Act says the district, state or national panels are to determine prima facie medical negligence?

More importantly, this committee with its undefined legal status effectively superseded the district forums and prevented them from judging cases. The committee of doctors could not be cross-examined and the parties could not present their views. The committee formed its opinion purely on the basis of documents submitted to it, and there was no provision for appeal. The most threatening aspect of this ruling was the fact that it could nullify the purpose of the Consumer Protection Act. If the Supreme Court had felt doctors were being harassed by frivolous complaints, it should have used the provision in the Consumer Protection Act to penalise frivolous complainants. Doctors can always approach civil courts to claim damages for wrongful harassment.

Much to the relief of consumers, this direction has been set aside. In the judgement in V Kishan Rao vs Nikhil Super Speciality Hospital, the Supreme Court has said that the direction in the Martin D’Souza case is not binding and the district and state forums need not send all medical negligence cases to a committee for opinion. Further, the apex court has held that the earlier judgement was incorrect as it was inconsistent with the provisions of the Consumer Protection Act and its objectives. Cases that have been referred to committees can be called back to the consumer forums. Expert opinion must sought only if the forum comes to a conclusion that the case is complicated and cannot be decided without the assistance of an expert. The state commission in Chennai issued a circular last week to all district forums conveying this news. The stage is set for free and fair trial in medical negligence cases.