Need to amend legislation to ensure professional liability

Pushpa Girimaji

While exempting lawyers from any professional liability for deficient services under the Consumer Protection (CP) Act, a two-judge Bench of the Supreme Court has opened a Pandora’s box by recommending to the Chief Justice of India that a 1995 judgment of the apex court that held a contrary view vis-à-vis medical professionals be re-considered!

Whatever may be the response of the Chief Justice, this will certainly spur not just medical professionals but many others to re-open the issue and this does not augur well for consumer protection and justice. And unless the Union Ministry of Consumer Affairs acts quickly and makes the necessary changes in the law, consumers may well lose their right under the CP Act to hold professionals, including doctors, radiographers, pharmacists, chartered accountants, engineers and architects, liable for their deficient services.

The judgment of the Supreme Court in the Bar of Indian Lawyers vs DK Gandhi case, delivered on May 14, holding that legal professionals are not accountable to consumers under the CP Act, certainly comes as a very big disappointment to consumers. Of course, the consumers’ right to sue their lawyers under the CP Act was more or less extinguished way back in 2009, when the Supreme Court stayed the order of the apex consumer court in DK Gandhi vs M Mathias case delivered in 2007, in favour of the consumer. If in the last decade-and-a-half — when the appeals against this order were pending before the Supreme Court — consumers had harboured any hope of a favourable judgment, that hope has now been dashed. But even now, the Union Ministry of Consumer Affairs, along with DK Gandhi, the complainant in the case, should file a review petition before the Supreme Court.

But what is more alarming is the view expressed in the judgment that the Supreme Court should re-open a much hailed judgment of the apex court in the Indian Medical Association vs VP Shantha case delivered in 1995, holding that consumers can seek compensation from medical professionals for negligence under the Consumer Protection Act.

Not many consumers today are aware of the situation that existed before the consumer protection law came into force in 1986. Be it a case of a doctor operating on the wrong leg, or leaving behind a pair of scissors in the abdomen post-surgery, or administering wrong medication to a patient or conducting needless hysterectomy or C-Section, the victims or their relatives in most cases suffered in silence because they could not afford to go to a civil court and fight a long legal battle to seek compensation. The Consumer Protection Act of 1986 for the first time gave them the right to seek damages for medical negligence and soon, cases began to be filed against doctors and hospitals.

The reaction from the medical professionals was quick, adverse and, sometimes, even violent. They rose as one in protest and exerted considerable pressure on the government to keep them out of the purview of the CP Act. The consumer activists had to fight hard to ensure that the government did not give in to the wishes of the doctors.

What finally settled the matter in favour of consumers was the extremely clear and lucid judgment of the Supreme Court in 1995 in the VP Shantha case. After carefully examining the provisions of the CP Act, the three-judge Bench held that the services rendered to a patient by a medical practitioner by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of ‘service’ as defined in the Act. The fact that medical practitioners belonged to the medical profession and were subject to the disciplinary control of the Medical Council of India/State Medical Council constituted under the Indian Medical Council Act would not exclude the services rendered by them from the ambit of the Act.

The present judgment of the Supreme Court, pertaining to lawyers, on the other hand, says that the legislature never intended to include professionals within the purview of the CP Act. Even if it did, the legal profession is ‘sui generis’ or unique in nature and cannot be equated with other professions and brought under the ambit of the CP Act. It also points out that a ‘profession’ cannot be equated with ‘business or trade’. Nor can the services provided by professionals be treated at par with the services provided by businessmen or traders, so as to bring them under the purview of the CP Act.

This judgment is sure to re-open the debate on the jurisdiction of the consumer commissions constituted under the CP Act and consumers should now get ready to protect their interests. As a first step, they must write to the Union Ministry of Consumer Affairs to bring in the necessary amendments to the CP Act to secure their right to seek compensation for negligent services rendered by professionals. 

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