Medical Negligence – Consumer Protection Act – ‘Service’ defined

If you are aggrieved by the medical treatment rendered by a hospital or a doctor, you can file an appropriate complaint under the provisions of Consumer Protection Act, 1986.


But before doing so, please ensure that the ‘service’ rendered by the hospital or doctor falls within the ambit of Section (2)(1)(o) of the Act.

On the subject of the responsibility of the treating hospital and the doctors, in a case of medical negligence, the law has been clearly enunciated in the decision of the Supreme Court in Indian Medical Association Vs. V.P. Shantha and ors. (1995) 6 SCC 651:-

(1) Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of ‘service’ as defined in Section 2(1) (o) of the Act.

(2) The fact that medical practitioners belong to the medical profession and are subject to the disciplinary control of the Medical Council of India and/or State Medical Councils constituted under the provisions of the Indian Medical Council Act would not exclude the services rendered by them from the ambit of the Act.

(3) A “contract of personal service” has to be distinguished from a “contract for personal services”. In the absence of a relationship of master and servant between the patient and medial practitioner, the service rendered by a medical practitioner to the patient cannot be regarded as service rendered under a ‘contract of personal service’. Such service is service rendered under a “contract for personal services” and is not covered by exclusionary clause of the definition of ‘service’ contained in Section 2 (1) (o) of the Act.

(4) The expression “contract of personal service” in Section 2(1) (o) of the Act cannot be confined to contracts for employment of domestic servants only and the said expression would include the employment of a medial officer for the purpose of rendering medical service to the employer. The service rendered by a medical officer to his employer under the contract of employment would be outside the purview of ‘service’ as defined in Section 2(1) (o) of the Act.

(5) Service rendered free of charge by a medical practitioner attached to a hospital/nursing home or a medical officer employed in a hospital/nursing home where such services are rendered free of charge to everybody, would not be ‘service’ as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.

(6) Service rendered at a non-government hospital/nursing home where no charge whatsoever is made from any person availing of the service and all patient (rich and poor) are given free service- is outside the purview of the expression ‘service’ as defined in Section 2 (1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.

(7) Service rendered at a non-government hospital/nursing home where charges are required to be paid by the persons availing of such services falls within the purview of the expression ‘service’ as defined in Section 2(1) (o) of the Act.

(8) Service rendered at a non-government hospital/nursing home where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered service free of charge would fall within the ambit of the expression ‘service’ as defined in Section 2(1) (o) of the Act irrespective of the fact that the service is rendered free of charge to persons who are not in a position to pay for such services. Free service, would also be ‘service’ and the recipient a ‘consumer’ under the Act.

(9) Service rendered at a government hospital/health center/dispensary where no charge whatsoever is made from any persons availing of the services and all patients (rich and poor) are given free service- is outside the purview of the expression ‘service’ as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.

(10) Service rendered at a government hospital/health center/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing of such services would fall within the ambit of the expression ‘service’ as defined in Section 2(1) (o) of the Act, irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be ‘service’ and the recipient a ‘consumer’ under the Act.

(11) Service rendered by a medical practitioner or hospital/nursing home cannot be regarded as service rendered free of charge, if the person availing of the service has taken an insurance policy for medical care where under the charges for consultation, diagnosis and medical treatment are borne by the insurance company and such service would fall within the ambit of ‘service’ as defined in Section 2(1) (o) of the Act.

(12) Similarly, where, as a part of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family members dependent on him, the service rendered to such an employee and his family members by a medical practitioner or a hospital/nursing home would not be free of charge and would constitute ‘service’ under Section 2 (1) (o) of the Act.

Speak Your Mind

*