Till recently, consumer courts (including the National Consumer Commission) were dismissing complaints concerning deficiency in medical service saying that expert opinion was not produced by the complainant to prove that the medical service rendered was indeed deficient. As is well-known, it is not easy to get a professional to testify against a fellow professional and so it appeared that it would be very difficult to approach consumer courts with any complaints against doctors or hospitals.
Such decisions of the consumer courts were based on a decision (I (2009) CPJ 32 (SC)) given by a two-man bench (consisting of Justices Markandey Katju and R.M.Lodha) of the Supreme Court which equated a complaint before the consumer court to a criminal complaint and said "We, therefore, direct that whenever a complaint is received against a doctor or hospital by the consumer Fora (whether District, State or National) or by the criminal court then before issuing notice to the doctor or hospital against whom the complaint was made, the Consumer Forum or the criminal court should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after the doctor or committee reports that there is prima facie case of medical negligence should notice be issued to the doctor/hospital concerned." This order was proving an insurmountable obstacle to many victims of medical negligence.
But luckily for the consumers, in a recent judgement (III (2010) CPJ 1 (SC)), Justices G.S.Singhvi and Ashok Kumar Ganguly of the Supreme Court have reversed this decision. They noted that in two separate earlier decisions (III (2002) CPJ 8 (SC) and III (2005) CPJ 9 (SC)), three-man benches of the Supreme Court had clearly differentiated between consumer complaints and criminal complaints and had laid down that in consumer cases, expert witnesses are necessary only in complicated cases and the question of whether to call an expert is left to the discretion of the consumer court. The Justices pointed out that in many cases medical negligence is evident and the complainant does not have to prove anything as the thing proves itself. In such cases, it is for the defendant to prove that he was not negligent. Justices Singhvi and Ganguly also said "It is clear from the statement of objects and reasons of the Consumer Protection Act 1986 that it is to provide a Forum for speedy and simple redressal of consumer disputes. Such avowed legislative purpose cannot be diluted or defeated by superimposing a requirement of having expert evidence in all cases of medical negligence regardless of factual requirement of the case. If that is done the efficacy of remedy under the Consumer Protection Act 1986 will be substantially curtailed and in many cases the remedy will became illusory to the common man."
Since the order of Justices Katju and Lodha was contrary to the decisions of the two earlier three-man bench decisions of the Supreme Court, Justices Singhvi and Ganguly declared the order to be "per incuriam" meaning that it was an order wrongly made by the court and therefore did not set a precedent.
The conclusion is that consumer courts are now required to call for expert medical evidence only in complicated cases of medical negligence and conduct a quick trial in others. This is a great boon to consumers who have suffered due to deficient medical service.
Dzikamai Mutsikadowo, Mysore Grahakara Parishat