CONSUMER PROTECTION ACT (CPA/ COPRA) & DENTISTRY

PRESENTED BY: Dr. Nilesh Arjun Torwane 2nd Year Post Graduate Student, Department of Public Health Dentistry, Peoples Dental Academy, Bhopal.

INTRODUCTION
The relationship between doctor and patient is based on trust and confidence.
Lucky doctors of the past were treated like God and people revered and respected them. Today, we witness a fast pace of commercialization and globalization on all spheres of life and the medical profession is no exception to these phenomena.

 The practice of medicine in India has undergone considerable change during the last five decades effecting delivery of health in both positive and negative directions.
As a result, it was increasingly felt that medical treatment should also be made answerable; therefore, doctors were covered by various laws.

 In India, the Consumer Protection Act (CPA) of 1986 was enacted & enforced from 10th June 1987 for better protection of the interests of consumer grievances. This is done through quasi-judicial mechanisms set up at district, state, and national levels. It was on 13th November 1995 that the honorable supreme court of India delivered judgment on application of consumer protection act, 1986 to the medical/dental profession, hospitals, dispensaries, nursing homes and other related services by the now famous ruling in the IMA VS VP Shanta case.

 This act empowers the patient to file lawsuits (in case of perceived negligence) in consumer courts.
After the consumer protection act came into effect, a number of patients have filed cases against dental and medical professionals and have proved that they were negligent in service delivery. The law is not made to punish all health professionals that cause injury to patients; it is concerned only with negligent acts.

 This presentation provides general information to a dentist regarding various dental negligent acts and legal procedures available in India.

Negligence:
Failure to use the degree of care considered reasonable under the circumstances, resulting in unintentional injury is negligence. For an act to be considered negligent, the following aspects must be present: 1. Dentist owed a certain standard of care 2. 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 negligent act and the resultant injury

 Dental negligence can cause the dentist to face litigation, if the service has been paid for.
However, the onus is on the patient to prove not only that he is the victim of negligent service but also has suffered damage in the process.

A few dental negligent acts

1. Any doctor can take up an emergency. A patient cannot be refused treatment on the ground that it is a medico legal case and therefore to be seen in a government or approved hospital. Failure to attend an emergency is negligence.
2. It is dentists responsibility to prevent cross infection between patients. Endangering the health or lives of other patients (even without injury) can invite criminal negligence (Sec 336 IPC). 3. All the patients have a right to information about the procedure and possible outcomes. Failure to explain may be considered a negligent act. It may, however, not be necessary in emergency.

4. Another cause of negligence usually involvesgeneral dentists attempt to treat beyond their level of competence and failure to refer cases to the appropriate specialists.
For example: in periodontal cases when there is any question as to the degree of difficulty or outcome, case should be referred to a periodontist to avoid legal pitfalls.

5. Lack of informed consent is a cause of malpractice action, and without it, battery (unlawful touching) can be alleged.
In practical terms, this means physically or emotionally harming the patient. If there is a procedure, which has complications or undesirable consequences, which a prudent patient does not anticipate, it is necessary to get an informed consent.

In the consent, There must be understanding of problem, that is, a diagnosis. The proposed treatment and any alternative treatments must be fully explained. No warranties or guarantees can be given. Authorization must allow for a change in plan if an un proposed circumstance arises. Discussion of all sequel and side effects of proposed/ current treatment plan must be given.

6. Failure to give advice clearly results in complication. Dentist must give clear instructions regarding diet and postoperative care.
7. If prescriptions are not clear and if they do not have proper instructions, dentist is deemed to have a been negligent. 8. Failure of dentist to advice a crown for root canal filled tooth with significant loss of tooth substance can result in fracture of tooth. Dentist will be held liable. Similarly, making defective dentures is a negligent act.

9. Accidental ingestion of crowns, dental instrument, teeth etc. can also be considered as negligence.
10. Patient was given local anesthesia without test dose and developed anaphylaxis and died. Dentist will be held liable. 11. Under Public Liability Insurance act, a dentist can be held liable for harm caused to the public by inadvertent exposure of harmful substances like mercury, arsenic or even radiations.

Some Non-negligent acts

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

2. patients dissatisfaction with the progress of treatment cannot be called negligence.

3. Not getting desired relief is not negligence. 4. Charging, what the patient thinks is exorbitant is not negligence. 5. When patient does not follow advice of the doctor and does not get 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 negligence. 8. Collecting fees is not negligence.

9. Referring patients is not negligence.

How dentist is liable for negligence?

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 his clinic or hospital. - Most dental negligence come under this category.

b. Vicarious liability: - Dentist who is employed by a hospital or institution is often not primarily responsible for negligence.
- They may be said to have vicarious liability through the hospital.

- The hospital has the liability for the negligence of an employee.

- However, if the patient is admitted by a dentist in his personal capacity, then the dentist will be personally liable.

2. Contractual liability: - In a doctor- patient relationship, an implied contract is established when a dentist accepts a patient for treatment.
- A breach of any aspect of this implied contract, where the dentist is under duty to, treat with care as well as continue to treat and not terminate until patient is cured or patient discontinuous treatment, may be considered a contractual liability. - However in most instances if there is no written contract, their liability will essentially lie within the realm of tortious liability.

3. Criminal liability: - This liability normally lies with an identifiable individual or groups of individuals. - However, recent trends indicate that hospitals also may be held vicariously liable just as in civil liabilities. - Criminal liability is penal and involves punishment in the form of imprisonment or fine or both. - Criminal negligence is considered to be a crime against society and not just the aggrieved party.

The important offences inviting criminal liability with regard to 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 person (even if there is no injury). e.g.- extracting a tooth for a patient with valvular heart disease without antibiotic prophylaxis against endocarditis (even if he does not develop endocarditis)

3. Section 337 (IPC): a rash or negligent act causing simple injury. e.g. pain and swelling after extraction due to negligent extraction.
4. Section 338 (IPC): a rash or negligent act resulting in grievous injury. e.g. fracture of jaw during extraction due to excessive or improper force.

A few terminologies
1. Cognizable offence: An offence where a police officer can, based on his investigation, arrest a person without a judicial warrant.
2. Non-cognizable: An offence, where an arrest can only be made by a judicial warrant. 3. Bailable: The arresting officer can give a bail. Bail is a matter of right and has to be given unless the officer apprehends that the accused may abscond or tamper with evidence. 4. Non-bailable: Bail can be secured only from a judge. Heinous and violent crimes fall in this category, e.g. If there is a significant risk that the offender may commit further crime, abscond or tamper with evidence.

5. Compoundable: A crime in which a compromise between the suspected offender and the victim or his representatives can be worked out is said to be compoundable.
6. Non-compoundable: If the crime is against society and is of a serious nature, no compromise can be made between the accused and the victim. These cases are said to be non compoundable.

 Sec C304A is cognizable, bailable and non compoundable. - It can be punished with imprisonment of either description for a term of two years or fine or both.
Sec 337 and 338 are cognizable, bailable and compoundable. - Sec 337 may attract an imprisonment up to three months and a fine up to Rs 250 or both. - Sec 338 can involve imprisonment up to two years and a fine up to Rs. 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 such as Pollution Control Board.

Who is liable?
Dentists with independent practice rendering only free services.
Private hospitals charging all. All hospitals having free as well as paying patients; they are liable to both. Doctors/hospitals paid by an insurance firm for treatment of a client or an employer for the treatment of an employee.

Who is not liable?

Dentists in hospitals which do not charge of their patients.
Hospitals offering free services to all patients. Dentists providing emergency care in the interest of patient.

LEGAL PROCESS
Dental negligence falls under section 2 (0) of the Consumer Protection Act (CPA) because Indian Dentist Act (IDA) had no 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 redressal mechanisms.

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 lakhs.

2. State Consumer Disputes Redressal Commission (SCDRC): - Established by State Govt. - Headed by president and two members - Presently 32 State Commissions are functioning in country.
Jurisdiction: compensation claimed exceeds Rs.20 lakhs up to Rs. 1 Crore.

3. National Consumer Disputes Redressal Commission (NCDRC): - Established by Central Govt., located in New Delhi - Headed by president and five members Jurisdiction: - Entertain complaints where compensation claimed for value of goods or services exceeds rupees One Crore. - It has the power of review. Within 30 days from the date of decision, appeal can be filed in the higher commission.

Salient features of Consumer Courts

Quasi-judicial: one sitting or retired district judge and 2 lay members.
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 21 days.

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 representing a patient threatening suit.

Who can Sue the doctor under CPA?

1. 2. 3. 4. Patient himself Registered consumer organizations State or Central Govt. The legal representative

Against whom can complaint be filed?

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 treatment then time starts from the point. The time starts from the date of injury and not from the date of disability certificate. However, if the injury is continuous then time starts from the date of last treatment given.

Most frequent allegations against dental 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

 Infection from use of unsterile instruments

Fracture and dislocation of jaw occurring during dental procedures extraction of wrong tooth or lack of consent Extraction of wrong tooth or lack of consent Death from anasthesia

Other Common causes for filing complaint

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 of a medical mishap?

When something untoward happens following a diagnostic or therapeutic procedure, or when a patient or relative makes a complaint, the dentist must take appropriate steps, some of which may be: 1. Complete the patients record and recheck the written notes. 2. Be frank enough and inform clearly of the mishap. - Show that you were genuinely concerned about the unfortunate mishap. - Answer all the queries of patient / relative and do not mind their repeated questioning, harsh attitude and at times even abusive language.

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

- Be compassionate, try to remain on the scene as long as possible, try to engage less excited attendants into discussion on the mishap and indirectly try to bring into focus the circumstances under which the mishap occurred. - Doctors who are open-minded and communicative are much less likely to be complained against as patients / attendants are extremely forgiving of errors made by a friendly and concerned medical attendant. - A high proportion of complaints are precipitated or escalated into legal action by a progressive breakdown of the doctor-patient communication.

3. After these initial responses, the dentist should contact some other doctor / protection organization to seek advice.
- The Dental Associations can form groups / cells to advise and assist in such situations.

What a dentist should not do?

Dont get upset
Tell your patient that you are insured Agree to offer a settlement without consultation from your insurance company. Alter your patients records. Agree to or offer a specialist fees without consulting your insurance company.

 Give your original treatment records to the patient or anyone except the court if required. Preserve the photocopy in your record.
Discuss about the patients treatment with anyone, except the insurance 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 needless litigations

Maintaining proper clinical records, documents.
Prescriptions given by the doctors should stick to the accepted norms of the medical practice. Whenever certificates are issued, duplicates should be taken for any future reference. Avoid any comments in front of the patient regarding the line of management adopted by your colleagues in a given situation.

 Before any invasive/ costly investigational or therapeutic procedure, informed consent of the patient or the nearest relatives should be obtained.
Obtaining professional indemnity. Continuous updating of recent developments.

CPA & Patients

Advantage: - Costly and time consuming litigation is avoided by going to consumer courts.
- These courts ensure a cheap and fairly quick remedy.

 Disadvantages: - The doctors will practice defensive medicine, i.e. more referrals than may normally be required- this will make medicinal treatment more expensive.
- Insurance premium for doctors and hospitals will shoot up. This will be passed on to the patient in terms of higher medical cost. - Patient- doctor relationship based on mutual trust and confidence will gradually disappear and a completely formal, contractual and antagonist relationship might replace it.

CPA & Doctors

Disadvantages: - The doctor prescribes medicine or treatment on the basis of a personal judgment formed at the time of examination. The situation might change shortly thereafter. It is difficult for lay people to judge all the cases.
- Any unwillingness or negligence on the part of the patient may negate the efficacy of medicines or treatment prescribed.

- As there are no court fees, many frivolous and vexatious cases may be filed against doctors. This may affect his practice as also reputation even if the case is eventually dismissed, the complainant loses nothing.
- Danger of professional blackmailer: trying to tarnish the good name of doctors or squeeze money out of them even when they are not to be blamed.

How can we protect ourselves?

Indemnify yourself against litigation: insurance policy. Pressure your professional association to start professional protection linked social security scheme (PPLS).

adopt safe practices& left nobility out of the argument.

Accepted that the medical profession is a business, but with a difference. Highlighted technical complexity and humanitarian benefits.

CONCLUSION
Doctors should be clear while taking the cases, they must decide whether to undertake the case, they must decide what treatment to give, and they must take care in the administration of that treatment. A breach of any of these duties gives the patient a right to act for negligence.

As mentioned earlier, the medical profession has come under pressure due to globalization and liberalization; therefore, now is the time to think well and to set our priorities right, both individually and collectively.

 Doctors practicing ethically and honestly should not have any reason for fear.
Law whether civil, criminal or consumer law, can only set the outer limits of acceptable conduct i.e. minimum standards of professional care and skill, leaving the question of ideal to the profession itself.

Legal vulnerability in Dental Practice

CRIMINAL TORT Unintentional
Negligence (Professional negligence, malpractice)

CIVIL CONTRACT Intentional

Assault & Battery

Misrepresentation (deceit)

Defamation (libel & slander)

Breach of confidentiality

TORTS
A tort is a civil wrong or injury, independent of a contract, that results from a breach of a duty.
It may be intentional or unintentional. An unintentional tort is one in which harm was not intended (like in the case of negligence). Intentional torts contain the element of intended harm.

 The intentional torts of major concern to the dentist 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 touching (battery) Traditionally lack of consent was treated as assault & battery. But recent decisions classify lack of informed consent as negligence.

 This change resulted because, courts recognized that, except in most unusual cases, doctors do not intend to harm their patients, even though the touching was not authorized by the patients.
If consent is present but faulty, the rules of malpractice will apply. If there is total absence of consent, the case will be treated as assault & battery.

 But there are some cases have occurred in dentistry, where lack of consent was not associated. E.g. the use of force or unnecessary physical restraints in the treatment of uncooperative children has led to allegations of criminal assault & battery and civil trespass to the person.
For that, avoid the use of physical force or unnecessary restraints in the treatment of children. - If you feel that such measures are necessary, discuss the matter 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 patients health in jeopardy or deprives the patient of the legal right to bring suit against the practitioner, a legal action in deceit or fraudulent concealment may result.
The problems in dentistry most frequently associated with deceit and fraudulent concealment include

- The failure to inform the patient when an instrument breaks off in a root canal,
- when a root is fractured & tip remains inside the jaw and - when the dentist is aware that the success of the treatment will be compromised because of lack of cooperation by the patient.

 In such matters, a note on the patients record of the event and of the fact that the patient was informed should be made; if possible, the patient should be asked to initial or sign the entry.
To avoid the allegation of misrepresentation, never lie to patients about their treatment, and keep them informed about their health status while in your care.

Defamation The intentional tort of defamation is not of major concern in dentistry because most dentists are aware of the problem and its consequences. To avoid the defamation related legal processes: keep your opinions about your patients to yourself unless they are essential to their successful treatment. Expressions about the mental health of the patient are particularly risky.

Breach of confidentiality It was not known as a tort under English Common Law, it is product of recent case laws. The information obtained from the patient in the course of diagnosis or treatment must remain confidential. Unless the patient waives confidentiality, a breach may lead to a suit. Patient may waive confidentiality by their actions or words.

 When patient visits a specialist on your request, you are expected to inform that practitioner of the health status of the patient.
To avoid the legal issues related to break of confidentiality, - Never reveal any information about a patient to anyone without first obtaining permission from the patient (preferably in writing)

Patients records
The patients dental record is a legal document. It serves many purposes in the judicial process. It contains information about the patients complaint, health history, basis for diagnosis, it reports all treatment rendered, the patients reaction to treatment & the results of the treatment. Treating a patient without maintaining accurate records represents a serious departure from an acceptable level of care (defined by the courts)

 The outcome of many suits against dentists are decided on the content and quality of patient records.
For the doctor, the record is the only documentation in/after the course of treatment.

 In cases which the doctor and patient disagree on what took place and there is no written documentation of the event, the question of how much weight will be given to the oral statements may be determined in court by who makes the most creditable witness.
This can become a risky situation for the doctor.

 In summary: - Failure to keep accurate records may constitute negligence and in some jurisdictions, a violation of a law. - It markedly increases the risk of losing a malpractice suit.

Record keeping rules

1. Entries should be legible, written in black ink or ballpoint pen.
2. In offices where more than one person is making entries, they should be signed or initialed. 3. Entries that are in error should not be blocked out so that they cannot be read. Instead, a single line should be drawn through the entry, and a note made above it stating error in entry, see correction below. The correction should be dated.

4. Entries should be uniformly spaced on the form. There should be no unusual or irregular blank spaces.
5. There should be no blank spaces in the answers to health questions. If the question is inappropriate, draw a single line through 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 treatments presented to the patients. Also include remarks made by the patient. 8. Document all conversations held with other health practitioners 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 checked to determine the requirements on how, where, and in what form the records must retained.

11. Never surrender the original record to anyone, except by order of a court or to your own attorney.
12. Never tamper with a record once there is some indication that legal action is contemplated by the patient.

What not to put on treatment record

Financial information should not be kept on the treatment record. Use separate financial form.
Do not record subjective evaluations, such as your opinion about the patients mental health, on the treatment record unless you are qualified and licensed to make such evaluation. Record such observations on a separate sheet marked confidential- personal notes.

 Do not record any correspondence with your professional liability insurance company, your attorney representing a patient on the treatment record.
Record all such notes and any conversations with the above on a separate sheet marked Confidential- personal notes.

Implied warranties (duties) owed by the doctor

To the doctor-patient relationship there are some additional duties 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 measured against acceptable standards set by other practitioners with similar training in similar community. 2. Be properly licensed and registered. 3. Employ competent personnel and provide for their proper supervision.

4. Maintain a level of knowledge about current advances in the profession. 5. Use methods that are acceptable to at least a respectable 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 dentistry. And 14. Practice in a manner consistent with the code of ethics of the profession.

Implied duties owed by the patient

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 health status. If the patient breaches any of these duties, notes to that effect should be made in the patients record.

References
1. K. Singh et al. Awareness of Consumer Protection Act among Doctors in Udaipur City, India. Journal of Dentistry, Tehran University of Medical Sciences, Tehran, Iran; Vol. 7, No.1, 2010. Ranjan Dhawan. Legal aspect in dentistry. Jr indn soc periodont. Vol 14, issue 1, 2010. Consumer Protection Act & Medical Practitioners J V N Jaiswal.

2.

3.

4.

S.S.Hiremath.Textbook of preventive and community dentistry. Elsevier Publications, 2nd edition, 2009,page nos. 277-283.
Anthony W. Jong. Community dental health. Mosbey publications, 3rd edition, 1993, page no. 307-330.

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