District, State Consumer Forums can consider medical negligence complaints against doctors: Kerala High Court

The Kerala High Court recently held that complaints in respect of medical negligence or deficiencies in medical service are maintainable before the District and State Consumer Disputes Redressal Commissions [Dr. Vijil & Ors v Ambujakshi TP]..Justice N Nagaresh said that the definition of "services" under the Consumer Protection Act of 2019, is inclusive and not exhaustive, especially for those of public utility."The medical services therefore would indeed fall within the ambit of Section 2(42), unless of course the service is free of charge or is under a contract of personal service," the judgment stated..The Court further held,"A reading of the inclusive part in Section 2(42) would show that the Parliament intended to specifically underline that certain services like Banking, Financing, Insurance, Transport, etc., which are in the nature of public utility services, would come within the purview of ‘services’. The definition is inclusive and not exhaustive. Therefore, all services which are made available to potential users would fall under Section 2(42), except those services rendered free of charge or under a contract of personal service. The words “but not limited to” appearing in Section 2(42) clarifies the intention of the Parliament", the single-Judge observed..The judgment was passed in a petition moved by several doctors against whom the respondent had filed a complaint at the District Consumer Disputes Redressal Commission, seeking compensation of ₹32,52,000 for loss of eyesight that was allegedly caused due to their medical negligence.The petitioners had challenged the maintainability of the complaint before the District and State Consumer Disputes Redressal Commissions, which dismissed the same. Thereafter, they approached the High Court for a direction declaring that the orders of the District and State Commissions were sans jurisdiction and hence illegal. They also sought to declare that the consumer fora under the Consumer Protection Act do not have jurisdiction to take cognisance of the complaints in respect of medical negligence and deficiency in medical services..It was pointed out that the Supreme Court in Indian Medical Association v VP Shantha and Ors held that the medical profession would also come within the purview of the definition of the term 'service' as under Section 2(1)(o) of the Act, 1986. However, 'medical profession/practice' has been omitted by Parliament from the list of facilities under 'service' as per Section 2(42) of the Act of 2019. This exclusion, despite the declaration of law by the apex court, clearly discloses the intention of Parliament not to include 'medical profession/practice' within the definition of 'service' as defined under the new Act, 2019, it was contended by the doctors.Moreover, it was pointed out that consumer fora do not have medical experts as members, except in the National Commission. As such, it was argued that lawmakers were convinced about the unfairness and injustice of adjudicating the complicated disputes relating to medical negligence/deficiency of medical services in summary proceedings under the Consumer Protection Act. .The High Court, however, failed to find merit in the contentions of the petitioners as Section 2(42) of the Act 2019 contains the phrase "“but not limited to”. This clarifies the position of Parliament that has provided a list that is merely inclusive, not exclusive. The High Court said that the District and State Consumer Disputes Redressal Commissions can consider complaints against doctors for negligence in services provided except when it is free of charge. It therefore dismissed the petition.The petitioners were represented by Senior Advocate S Gopakumaran Nair and Advocates Sooraj T Elenjickal, Renoy Vincent, Arun Roy, Helen PA and Shahir Showkath Ali. The respondents were represented by Assistant Solicitor General of India Manu S and Central Government Counsel V Gireesh Kumar. .[Read Judgment]