consumer protection act.pptx

7/27/2019 CONSUMER PROTECTION ACT.pptx

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CONSUMER PROTECTION ACT

(CPA/ COPRA)

&DENTISTRY

PRESENTED BY:

Dr. Nilesh Arjun Torwane

2nd Year Post Graduate Student,

Department of Public Health Dentistry,

People’s Dental Academy,

Bhopal.



INTRODUCTION

• The relationship between doctor and patient is based onconfidence.

• Lucky doctors of the past were treated like God and peo

revered and respected them.

• Today, we witness a fast pace of commercialization and

globalization on all spheres of life and the medical profe

no exception to these phenomena.



• The practice of medicine in India has undergone considchange during the last five decades effecting delivery of

both positive and negative directions.

• As a result, it was increasingly felt that medical treatme

also be made answerable; therefore, doctors were covevarious laws.



• In India, the Consumer Protection Act (CPA) of 1986 was en

enforced from 10th June 1987 for better protection of the inteconsumer grievances.

• This is done through quasi-judicial mechanisms set up at dis

and national levels.

• It was on 13th November 1995 that the honorable supreme

India delivered judgment on application of consumer protect

1986 to the medical/dental profession, hospitals, dispensari

homes and other related services by the now famous ruling

VS VP Shanta case.



• This act empowers the patient to file lawsuits (in case operceived negligence) in consumer courts.

• After the consumer protection act came into effect, a nu

patients have filed cases against dental and medical pro

and have proved that they were negligent in service del

• The law is not made to punish all health professionals th

injury to patients; it is concerned only with negligent act



• This presentation provides general information to a regarding various dental negligent acts and legal pro

available in India.



Negligence:

• Failure to use the degree of care considered reasonable

the circumstances, resulting in unintentional injury is ne

• For an act to be considered negligent, the following asp

be present:

1. Dentist owed a certain standard of care2. Dentist did not maintain that standard

3. There was an injury resulting from the lack of care

4. There should be a connection (proximity) between the

act and the resultant injury



• Dental negligence can cause the dentist to face litigatioservice has been paid for.

• However, the onus is on the patient to prove not only th

victim of negligent service but also has suffered damage

process.



A few dental negligent acts

1. Any doctor can take up an emergency. A patient cannot be refutreatment on the ground that it is a medico legal case and there

seen in a government or approved hospital. Failure to attend an

is negligence.

2. It is dentist‟s responsibility to prevent cross infection between pa

Endangering the health or lives of other patients (even without iinvite criminal negligence (Sec 336 IPC).

3. All the patients have a right to information about the procedure

outcomes. Failure to explain may be considered a negligent act

however, not be necessary in emergency.



4. Another cause of negligence usually involves-general dentists attempt to treat beyond their level of com

and failure to refer cases to the appropriate specialists.

For example: in periodontal cases when there is any ques

the degree of difficulty or outcome, case should be referre

periodontist to avoid legal pitfalls.



5. Lack of informed consent is a cause of malpractice actiwithout it, battery (unlawful touching) can be alleged.

In practical terms, this means physically or emotionally ha

patient.

If there is a procedure, which has complications or undesi

consequences, which a prudent patient does not anticipat

necessary to get an informed consent.



In the consent,• There must be understanding of problem, that is, a diag

• The proposed treatment and any alternative treatments

fully explained.

• No warranties or guarantees can be given.

• Authorization must allow for a change in plan if an un pr

circumstance arises.

• Discussion of all sequel and side effects of proposed/ cu

treatment plan must be given.



6. Failure to give advice clearly results in complication. Degive clear instructions regarding diet and postoperative ca

7. If prescriptions are not clear and if they do not have pro

instructions, dentist is deemed to have a been negligent.

8. Failure of dentist to advice a crown for root canal filled t

significant loss of tooth substance can result in fracture of

Dentist will be held liable. Similarly, making defective dent

negligent act.



9. Accidental ingestion of crowns, dental instrument, teethalso be considered as negligence.

10. Patient was given local anesthesia without test dose a

developed anaphylaxis and died. Dentist will be held liable

11. Under Public Liability Insurance act, a dentist can be h

for harm caused to the public by inadvertent exposure of h

substances like mercury, arsenic or even radiations.



Some Non-negligent acts

1. Not obtaining a consent form in an emergency is not neglig

2. patient‟s dissatisfaction with the progress of treatment can

called negligence.

3. Not getting desired relief is not negligence.

4. Charging, what the patient thinks is exorbitant is not neglig

5. When patient does not follow advice of the doctor and doe

satisfactory results, dentist cannot be held negligent.



6. Not accepting the patients is not negligence.

7. Not attending on patients outside clinic timing is not neg

8. Collecting fees is not negligence.

9. Referring patients is not negligence.



How dentist is liable for negligenc

Dentists are liable under four heads:1. Tortious liability

2. Contractual liability

3. Criminal liability

4. Statutory liability



1. Tortious Liability:a. Primary liability

b. Vicarious liability

a. Primary tortious liability:

- when dentist is directly liable for an act of negligence in

or hospital.

- Most dental negligence come under this category.



b. Vicarious liability:- Dentist who is employed by a hospital or institution is of

primarily responsible for negligence.

- They may be said to have vicarious liability through the

- The hospital has the liability for the negligence of an em

- However, if the patient is admitted by a dentist in his pe

capacity, then the dentist will be personally liable.



2. Contractual liability:- In a doctor- patient relationship, an implied contract is est

when a dentist accepts a patient for treatment.

- A breach of any aspect of this implied contract, where the

under duty to, treat with care as well as continue to treat aterminate until patient is cured or patient discontinuous tre

may be considered a contractual liability.

- However in most instances if there is no written contract,

liability will essentially lie within the realm of tortious liabili



3. Criminal liability:

- This liability normally lies with an identifiable individual or grou

individuals.

- However, recent trends indicate that hospitals also may be he

vicariously liable just as in civil liabilities.

- Criminal liability is penal and involves punishment in the form o

imprisonment or fine or both.

- Criminal negligence is considered to be a crime against societ

just the aggrieved party.



The important offences inviting criminal liability with r

negligence are:

1. Section 304 A (IPC):

- A rash or negligent act resulting in death.

E.g. death on the dental chair.

2. Section 336 (IPC): An act endangering the life of a pers

there is no injury).e.g.- extracting a tooth for a patient with valvular heart dis

without antibiotic prophylaxis against endocarditis (even if

not develop endocarditis)



3. Section 337 (IPC): a rash or negligent act causing simpe.g. pain and swelling after extraction due to negligent ext

4. Section 338 (IPC): a rash or negligent act resulting in g

injury.

e.g. fracture of jaw during extraction due to excessive or imforce.



A few terminologies

1. Cognizable offence: An offence where a police officer can, base

investigation, arrest a person without a judicial warrant.

2. Non-cognizable: An offence, where an arrest can only be made

warrant.

3. Bailable: The arresting officer can give a bail. Bail is a matter of has to be given unless the officer apprehends that the accused

abscond or tamper with evidence.

4. Non-bailable: Bail can be secured only from a judge. Heinous an

crimes fall in this category, e.g. If there is a significant risk that th

may commit further crime, abscond or tamper with evidence.



5. Compoundable: A crime in which a compromise betweesuspected offender and the victim or his representatives c

worked out is said to be compoundable.

6. Non-compoundable: If the crime is against society and

serious nature, no compromise can be made between theand the victim. These cases are said to be non compound



• Sec C304A is cognizable, bailable and non compoundable.

- It can be punished with imprisonment of either description fo

two years or fine or both.

• Sec 337 and 338 are cognizable, bailable and compoundab

- Sec 337 may attract an imprisonment up to three months anto Rs 250 or both.

- Sec 338 can involve imprisonment up to two years and a fin

1000 or both.

It is important for the dentist to be aware of these liabilities.



4. Statutory liability• A dentist is liable if there is any infringement of statutes

• They then become accountable to a statutory body.

• The liability depends on the kind of infringement and the

provisions in the statute to deal with it.

• Dentists may also be liable to other statutory bodies suc

Pollution Control Board.

Wh i li bl ?



Who is liable?

• Dentists with independent practice rendering only free s

• Private hospitals charging all.

• All hospitals having free as well as paying patients; they

to both.

• Doctors/hospitals paid by an insurance firm for treatmen

client or an employer for the treatment of an employee.

Wh i t li bl ?



Who is not liable?

• Dentists in hospitals which do not charge of their patien

• Hospitals offering free services to all patients.

• Dentists providing emergency care in the interest of pat

LEGAL PROCESS



LEGAL PROCESS

• Dental negligence falls under section 2 (0) of the ConsuProtection Act (CPA) because Indian Dentist Act (IDA) h

provision to:

- Entertain any complaint from the patient

- Take action against dentist in case of negligence

- Award compensation

In India, the CPA 1986 envisages 3-tier grievance redress

mechanisms.

CONSUMER COURTS



CONSUMER COURTS

1. District Consumer Disputes Redressal Forum (DCDRF

- Established by state Govt. for each district

- Headed by President and two members

- Presently 569 district forum (DF) are functioning

Jurisdiction:

- Where compensation claimed not exceeding Rs. 20 lak



2. State Consumer Disputes Redressal Commission (SCD

- Established by State Govt.

- Headed by president and two members

- Presently 32 State Commissions are functioning in coun

Jurisdiction:

compensation claimed exceeds Rs.20 lakhs up to Rs. 1 C



3. National Consumer Disputes Redressal Commission (NC

- Established by Central Govt., located in New Delhi

- Headed by president and five members

Jurisdiction:

- Entertain complaints where compensation claimed for valgoods or services exceeds rupees One Crore.

- It has the power of review.

• Within 30 days from the date of decision, appeal can be fi

higher commission.



Salient features of Consumer Cou

• Quasi-judicial: one sitting or retired district judge and 2 lay

• It has powers of civil court.

• Speedy justice avoids cumbersome procedures.

• Accepts experts opinions as affidavits.

• No court fees (changed with effect from 15/3/2003)

• No appeal fees (changed with effect from 15/3/2003)



• Court shall forward complaint to opposite party within 2

• Opposite party replies within time given by court.

• Decision within 3 months (Act no 62 of 2002)

• Appeal in 30 days to higher court.



When the doctor is sued?

• If a patient threatens the doctor with a suit.

• If the doctor receives a letter from an attorney represen

patient threatening suit.



Who can Sue the doctor under CP

1. Patient himself

2. Registered consumer organizations

3. State or Central Govt.

4. The legal representative



Against whom can complaint be fil

• All medical practitioners (medical, dental, others)

• All private or trust hospitals, NH, polyclinics

• Govt. hospitals and doctors

• Laboratories, x-ray clinic

• The nurses and paramedical staff

• Medical stores, pharmaceutical companies

• Quacks



Time limit to file a complaint

• It is two years from the date of injury.

• If the patient is aware of certain facts regarding treatme

time starts from the point.

• The time starts from the date of injury and not from the disability certificate.

• However, if the injury is continuous then time starts from

of last treatment given.

Most frequent allegations against d



Most frequent allegations against d

professionals

• Slipping instruments

• Broken needles

• Root left in the socket without the knowledge of patient

• Flying fragments entering the respiratory passages

• Injury in fitting or ill fitting plates and dentures



Other Common causes for filing com

• Doctor too busy to talk

• Criticism of doctor by other doctor (bad professional ethics)

• Pressure from others

• To prevent happenings to others

• To relieve guilt by blaming the doctor

• For vengeance or money.

What should a dentist do in the event



medical mishap?

• When something untoward happens following a diagnostic o

therapeutic procedure, or when a patient or relative makes athe dentist must take appropriate steps, some of which may

1. Complete the patient‟s record and recheck the written note

2. Be frank enough and inform clearly of the mishap.

- Show that you were genuinely concerned about the unfortumishap.

- Answer all the queries of patient / relative and do not mind t

repeated questioning, harsh attitude and at times even abus

language.



- Keep in mind the mental state of the close relatives / friends.

- Be compassionate, try to remain on the scene as long as possibl

engage less excited attendants into discussion on the mishap an

try to bring into focus the circumstances under which the mishap

- Doctors who are open-minded and communicative are much lesscomplained against as patients / attendants are extremely forgivi

made by a friendly and concerned medical attendant.

- A high proportion of complaints are precipitated or escalated into

by a progressive breakdown of the doctor-patient communication



3. After these initial responses, the dentist should contact

other doctor / protection organization to seek advice.

- The Dental Associations can form groups / cells to advis

assist in such situations.

Wh t d ti t h ld t d ?



What a dentist should not do?

• Don‟t get upset

• Tell your patient that you are insured

• Agree to offer a settlement without consultation from your in

company.

• Alter your patient‟s records.

• Agree to or offer a specialist fees without consulting your ins

company



• Give your original treatment records to the patient or anyone exc

if required. Preserve the photocopy in your record.

• Discuss about the patient‟s treatment with anyone, except the ins

company.

• Admit fault or guilt to anyone.

• Contact any other practitioner about the case.

• Agree to treat the patient plaintiff during the pendency of the case

Guidelines to be adopted to avoid ne



p

litigations

• Maintaining proper clinical records, documents.

• Prescriptions given by the doctors should stick to the ac

norms of the medical practice.

• Whenever certificates are issued, duplicates should be any future reference.

• Avoid any comments in front of the patient regarding the

management adopted by your colleagues in a given situ



• Before any invasive/ costly investigational or therapeutic

procedure, informed consent of the patient or the neare

should be obtained.

• Obtaining professional indemnity.

• Continuous updating of recent developments.

CPA & Patients



CPA & Patients

• Advantage:

- Costly and time consuming litigation is avoided by going

consumer courts.

- These courts ensure a cheap and fairly quick remedy.



• Disadvantages:

- The doctors will practice “ defensive medicine”, i.e. morthan may normally be required- this will make medicina

more expensive.

- Insurance premium for doctors and hospitals will shoot

will be passed on to the patient in terms of higher medic

- Patient- doctor relationship based on mutual trust and c

will gradually disappear and a completely formal, contra

antagonist relationship might replace it

CPA & Doctors



CPA & Doctors

• Disadvantages:

- The doctor prescribes medicine or treatment on the bas

personal judgment formed “ at the time of examination”.

situation might change shortly thereafter. It is difficult fo

people to judge all the cases.

- Any unwillingness or negligence on the part of the patie

negate the efficacy of medicines or treatment prescribed



- As there are no court fees, many frivolous and vexatiou

may be filed against doctors. This may affect his practicreputation even if the case is eventually dismissed, the

complainant loses nothing.

- Danger of professional blackmailer: trying to tarnish thename of doctors or squeeze money out of them even w

are not to be blamed.

How can we protect ourselves?



How can we protect ourselves?

• Indemnify yourself against litigation: insurance policy.

• Pressure your professional association to start professional

linked social security scheme (PPLS).

• adopt safe practices& left nobility out of the argument.

• Accepted that the medical profession is a business, but with

difference.

• Highlighted technical complexity and humanitarian benefits

CONCLUSION



CONCLUSION

• Doctors should be clear while taking the cases, they mu

whether to undertake the case, they must decide what tto give, and they must take care in the administration of

treatment.

• A breach of any of these duties gives the patient a right

negligence.

• As mentioned earlier, the medical profession has come

pressure due to globalization and liberalization; therefor

the time to think well and to set our priorities right, both

individually and collectively



• Doctors practicing ethically and honestly should not hav

reason for fear.

• Law whether civil, criminal or consumer law, can only se

limits of acceptable conduct i.e. minimum standards of

professional care and skill, leaving the question of idealprofession itself.



L l l bilit i D t l P ti



Legal vulnerability in Dental Practice

CRIMINAL CIVIL

TORT CONTRACT Unintentional Intentional

Negligence (Professional negligence,

malpractice)

Assault Misrepresentation Defamation Breach

& (deceit) (libel & slander)Battery

TORTS



TORTS

• A tort is a civil wrong or injury, independent of a contrac

results from a breach of a duty.

• It may be intentional or unintentional.

• An unintentional tort is one in which harm was not intenthe case of negligence).

• Intentional torts contain the element of intended harm.



• The intentional torts of major concern to the dent

include:

- Trespass to the person(assault and battery)

- Defamation

- Breach of confidentiality &- Misrepresentation (deceit)



Trespass to the person (Assault & Battery):

• It means a threat to harm (assault) and unauthorized to

(battery)

• Traditionally lack of consent was treated as assault & ba

• But recent decisions classify lack of informed consent a

negligence.



• This change resulted because, courts recognized that, e

most unusual cases, doctors do not intend to harm theireven though the touching was not authorized by the pat

• If consent is present but faulty, the rules of malpractice w

• If there is total absence of consent, the case will be trea

assault & battery.



• But there are some cases have occurred in dentistry, w

of consent was not associated.

E.g. the use of force or unnecessary physical restraints in

treatment of uncooperative children has led to allegations

assault & battery and civil trespass to the person.

• For that, avoid the use of physical force or unnecessary

in the treatment of children.

- If you feel that such measures are necessary, discuss th

with the parents and have them present in the operatory.



Misrepresentation (deceit)

• Patient must be kept informed of their treatment status.

• If information is withheld that places a patient‟s health in

or deprives the patient of the legal right to bring suit aga

practitioner, a legal action in deceit or fraudulent conceamay result.

• The problems in dentistry most frequently associated w

and fraudulent concealment include



- The failure to inform the patient when an instrument bre

a root canal,

- when a root is fractured & tip remains inside the jaw and

- when the dentist is aware that the success of the treatmcompromised because of lack of cooperation by the pat



• In such matters, a note on the patient‟s record of the ev

the fact that the patient was informed should be made; the patient should be asked to initial or sign the entry.

• To avoid the allegation of misrepresentation, never lie to

about their treatment, and keep them informed about th

status while in your care.



Defamation

• The intentional tort of defamation is not of major concerdentistry because most dentists are aware of the proble

consequences.

• To avoid the defamation related legal processes: keep y

opinions about your patients to yourself unless they are to their successful treatment.

• Expressions about the mental health of the patient are p

risky



Breach of confidentiality

• It was not known as a tort under English Common Law, product of recent case laws.

• The information obtained from the patient in the course o

diagnosis or treatment must remain confidential.

• Unless the patient waives confidentiality, a breach may l

suit.

Patient ma ai e confidentialit b their actions or ord



• When patient visits a specialist on your request, you are

to inform that practitioner of the health status of the pati

• To avoid the legal issues related to break of confidentia

- Never reveal any information about a patient to anyone

first obtaining permission from the patient (preferably in

Patient’s records



• The patient‟s dental record is a legal document.

• It serves many purposes in the judicial process.

• It contains information about the patient‟s complaint, healt

basis for diagnosis, it reports all treatment rendered, the p

reaction to treatment & the results of the treatment.

• Treating a patient without maintaining accurate records re

serious departure from an acceptable level of care (define

t )



• The outcome of many suits against dentists are decided

content and quality of patient records.

• For the doctor, the record is the only documentation in/a

course of treatment.



• In cases which the doctor and patient disagree on what

and there is no written documentation of the event, the how much weight will be given to the oral statements m

determined in court by who makes the most creditable w

• This can become a risky situation for the doctor.



• In summary:

- Failure to keep accurate records may constitute negligesome jurisdictions, a violation of a law.

- It markedly increases the risk of losing a malpractice su

Record keeping rules



1. Entries should be legible, written in black ink or ballpoi

2. In offices where more than one person is making entrie

should be signed or initialed.

3. Entries that are in error should not be blocked out so thcannot be read. Instead, a single line should be drawn

the entry, and a note made above it stating “error in en

correction below.”

The correction should be dated.



4. Entries should be uniformly spaced on the form. There

no unusual or irregular blank spaces.

5. There should be no blank spaces in the answers to hea

questions. If the question is inappropriate, draw a single li

the question, or record “not applicable” (NA) in the box.

If response is normal, write „within normal limits‟ (WNL).

6. Record all cancellations, late arrivals and changes in

appointments.



7. Document consents, including all risks and alternative t

presented to the patients. Also include remarks made by t

8. Document all conversations held with other health pract

relating to the care of the patient.

9. All patient records should be retained forever.

10. If the practice is discontinued, local law should be chec

determine the requirements on how, where, and in what fo

d t t i d



11. Never surrender the original record to anyone, except

of a court or to your own attorney.

12. Never tamper with a record once there is some indicat

legal action is contemplated by the patient.

What not to put on treatment reco



• Financial information should not be kept on the treatme

Use separate financial form.

• Do not record subjective evaluations, such as your opin

the patient‟s mental health, on the treatment record unle

are qualified and licensed to make such evaluation. Rec

observations on a separate sheet marked “confidential-

notes”.



• Do not record any correspondence with your profession

insurance company, your attorney representing a patientreatment record.

• Record all such notes and any conversations with the a

separate sheet marked “Confidential- personal notes”.

Implied warranties (duties) owed bydoctor



doctor

• To the doctor-patient relationship there are some additio

that are implied.

• They are enforceable although not written or stated.

• Some of the identified duties are as follows:

1. Use reasonable care in the provision of services as me

against acceptable standards set by other practitionerssimilar training in similar community.

2. Be properly licensed and registered.

3. Employ competent personnel and provide for their pro

i i



4. Maintain a level of knowledge about current advances i

profession.5. Use methods that are acceptable to at least a respecta

minority of similar practitioners in the community.

6. Do not use experimental procedures.

7. Do not abandon the patient.

8. Ensure that care available in emergency situations.

9. Charge a reasonable fee.

10. Complete the care in timely manner.

11. Keep the records clear.



12. Maintain confidentiality of information.

13. Comply with all laws regulating the practice of dentistr And

14. Practice in a manner consistent with the code of ethics

profession.

Implied duties owed by the patie



• In accepting care the patient warrants the following.

1. Home care instructions will be followed.2. Appointments will be kept.

3. Bills for services will be paid in a reasonable time.

4. That the patient will cooperate in the care.

5. That the patient will notify the dentist of a change in hestatus.

• If the patient breaches any of these duties, notes to that

should be made in the patient‟s record.

References



1. K. Singh et al. Awareness of Consumer Protection Act among Doctors

City, India. Journal of Dentistry, Tehran University of Medical Sciences

Iran; Vol. 7, No.1, 2010.

2. Ranjan Dhawan. Legal aspect in dentistry. Jr indn soc periodont. Vol

2010.

3. Consumer Protection Act & Medical Practitioners – J V N Jaiswal.

4. S.S.Hiremath.Textbook of preventive and community dentistry. Elsev

Publications, 2nd edition, 2009,page nos. 277-283.

5. Anthony W. Jong. Community dental health. Mosbey publications, 3rd



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