Can The Consumer Protection Act Apply To Medical Negligence Cases Involving Negligent Services Provided By Physicians And Hospitals Free Of Charge?


This article delves into the application of the Consumer Protection Act (CPA) to medical negligence claims including free services provided by physicians and hospitals. The concepts of negligence and medical negligence, looking for overlap and divergence within the context of the CPA shall be examined. In addition, key judicial pronouncements and scholarly perspectives to better grasp the complicated legal landscape surrounding this topic are also looked into. Finally, it is argued argue that, while the CPA’s scope includes medical services, assessing its applicability in cases involving free treatment requires a sophisticated assessment of the unique circumstances, taking into account elements such as implicit contracts, reasonable expectations, and public policy aims. The research is concluded with proposals for legislative clarification and more transparency in healthcare delivery to guarantee patient safety and fast dispute resolution.


The healthcare industry enjoys a unique position in the consumer landscape. While access to decent healthcare is a fundamental right, it is frequently given through a complex web of public and private providers, creating difficult considerations about patient rights and legal remedy in the event of negligence. This paper examines a particularly difficult scenario: the application of the Consumer Protection Act (CPA) to medical negligence claims including free services given by physicians and hospitals. Understanding this interaction necessitates a thorough review of definitions, legal precedents, and policy implications.

Meaning of Negligence

In Jacob Mathew v. State of Punjab And Another[1], the Supreme Court ruled that negligence was a breach of duty caused by the failure to do something that a reasonable man, guided by considerations that ordinarily regulate the conduct of human affairs, would do, or by doing something that a prudent and reasonable man would not do. According to the Supreme Court, negligence is the failure to exercise ordinary care or skill towards a person.

Negligence is defined as a breach of duty when someone fails to do something that a reasonable person would do or does something that a wise person would not do[2].

This concept has three interconnected but independent components:

  • a legal duty to exert reasonable skill, knowledge, and care,
  • a breach of that duty, and
  • consequential damages resulting from the breach.29

Medical Negligence


In Bolam’s case[3], McNair J. established the criterion for determining medical professional negligence as “the standard of the ordinary skilled man exercising and professing to have that special skill”.

According to English law, a doctor is not considered negligent if they follow standard medical practices. The court should determine appropriate conduct based on expert opinions in the subject. The court will consider how other medical experts handled comparable situations. Suresh Gupta v. Govt. of NCT of Delhi and Anr.[4], a major case in India, accepted Bolam’s stance. The Bolam test was approved after being referred to a larger Supreme Court bench in Jacob Mathew v. State of Punjab[5] and Shiv Ram v. State of Punjab[6].

The Bolam Test—Medical negligence is said to have been established by an aggrieved plaintiff or complainant when it is shown that the doctor or medical professional was in want of or did not fulfil the standard of care required of her or him, as such professional, reasonably skilled with the science available at the relevant time. A doctor is not negligent if what he has done is endorsed by a responsible body of medical opinion in the relevant speciality at the material time[7].


“The thing speaks for itself,” according to the Latin proverb “res ipsa loquitur.” When a doctor treats a patient far less carefully than what is expected of them, it is assumed that medical negligence has occurred. It is considered that negligence has occurred if the harm so produced is of a kind that would not have happened in the absence of negligence.


The President gave his assent the Consumer Protection Act of 2019 on August 9, 2019. The goal of this statute is to protect consumers’ interests, and it sets authorities for the quick and effective administration and resolution of consumer disputes. Given the breadth of the matter, it is critical to first understand the definition of medical negligence before delving into the Consumer Protection Act.

As ascertained by the information in aforementioned sections, Medical negligence is defined as any irregular activity by a member of the profession or associated services while performing professional duties. Negligence is the breach of a legal obligation of care.


In Indian Medical Association v. Shantha[8], the Supreme Court defined health care as a service under the Consumer Protection Act for the first time.

  1. Medical services are classified as “services” under Section 2(1)(o) of the Act.
  • There is no master-servant relationship, hence this is not a personal service contract.
  • Section 2(1)(o) does not exclusively apply to domestic servant employment contracts.
  • The Act does not include services supplied to employers
  1. Section 2(1) (o) of the Act excludes free medical services provided by hospitals and nursing homes.
  2. Free medical services provided by independent doctors fall under Section 2(1)(o) of the Act’s jurisdiction.
  3. The Act covers medical services provided for consideration.
  4. The Act covers medical services where payment is made by a third party.
  5. Under Section 2(1) (d) of the Act, hospital patients who are unable to pay for services would be considered consumers


In continuation of the previously mentioned judgment, the court selected a restricted approach in situations involving ‘free medical treatment’. It distinguished between the following circumstances:

  1. Services that are provided free of charge to everyone who uses them;

2.Services that everyone who uses them must pay for;

3.Services that are generally paid for are made available free of charge to those who cannot afford to pay for them.

In this important decision, the Supreme Court determined that services supplied by doctors and hospitals in the second and third categories are subject to the scope and definition of a “service” as specified in Section 2(1)(o) of COPRA. As a result, people who get free services are “beneficiaries” and thus fall under the definition of “consumer” in Section 2(1)(d) of the Act.

Furthermore, any forum trying a case involving medical negligence in any jurisdiction must consider at least the three factors listed below before making a decision. These are the following:

  • Legitimate and disciplinary methods must be properly implemented on firm, moral, and scientific grounds.
  • Patients will receive better care if the true causes of damage are identified and addressed appropriately.
  • numerous occurrences have a contribution from more than one individual, and it is more likely to hold accountable the last apparent part in the chain of causation and predominantly accuse this person of carrying the ‘smoking gun’.

The situations of exclusion are those specified in section 2(1)(o), namely service under a contract of personal service and service free of charge. The Supreme Court determined that the contract between the doctor and the patient was a contract for services rather than a contract of personal service, which implied a master-servant relationship. Therefore in respect of any medical service availed of after paying for it, any dispute may be raised before the agencies under the Act. However, the Supreme Court ruled that if only a small contribution was made, it would not constitute consideration, and therefore the service should be considered free of charge and hence outside the jurisdiction of the agencies under the Act.

The Supreme Court went even farther, ruling that people who were offered free services in a clinic where other patients had to pay would be covered by the Act. This raised many eyebrows. Those kinds of people, properly speaking, do not fall under the definition of “consumer” in the Act as beneficiaries, because they do not use the services supplied to them solely with the agreement of those who have paid for them. A medical clinic’s services may be provided for philanthropic purposes. However, there are other reasons to support the Supreme Court’s position. The clinic may entertain the poor patients in order to enhance its clientele, or it may even exploit them in clinical research.

Consumer protection act

[Image Sources : Shutterstock]


Since the current pandemic has shown, medical personnel sacrifice blood, sweat, and tears to save lives, but there are instances in which a patient suffers greatly as a result of a professional’s negligence. The medical community bears a mark for such carelessness. It’s also crucial to remember that the purpose of this piece is not to minimise the hard work and dedication of our respected medical experts. When it comes to free medical care, the judiciary has the authority to set guidelines and pave the path for the enactment of tort legislation across the country.

The Consumer Protection Act’s (CPA) applicability to medical negligence claims involving free treatment is still a complicated and developing topic with varying interpretations. Although the CPA may not have been designed with free medical services in mind at the outset, court rulings have steadily broadened its application to include specific situations. The following recommendations could help resolving the challenges of ambiguity and inconsistent results caused by the CPA’s vague criteria for free medical treatments. Patients are left wondering what their legal options are, and this raises questions about fair access to justice.

  • Legal clarification: Removing any doubt and giving patients more assurance regarding their rights would be achieved by amending the CPA to specifically address the Act’s applicability to free medical treatments. This could entail specifying the precise standards for using the CPA in each situation as well as identifying several classifications of free services (government vs. charitable healthcare, for example).
  • Standardised protocols: Regardless of the cost structure, implementing standardised standards for medical treatment across all settings can help reduce the risk of neglect and guarantee a minimum standard of care for all patients.
  • Raising public knowledge of patients’ rights under the CPA can enable them to seek compensation for damages they suffered as a result of careless free medical treatment. This is especially true for underprivileged populations.
  • Alternative dispute resolution: When it comes to medical negligence lawsuits, especially those that involve free treatment, investigating alternative dispute resolution procedures like mediation or arbitration may provide quicker and less combative resolutions.

By taking these suggestions into consideration, we can guarantee that everyone, regardless of financial situation, has access to strong legal redress in situations of medical malpractice, promoting a fair and just healthcare system.

Author: Bhavhya Chhabra, in case of any queries please contact/write back to us via email to or at  Khurana & Khurana, Advocates and IP Attorney.

[1] (2005) 6 SCC 1.

[2] Poonam Verma v. Ashvini Patel & Ors., (AIR 1996 SC 2111).

[3] (1957) 2 AII ER 118.

[4] (2004) 6 SCC 422.

[5] (2005) 6 SCC 1.

[6] AIR 2005 SC 3280.

[7] CPL Ashish Kumar Chauhan Versus Commanding Officer and Others [2023] 6 MLJ 8.

[8] 1995 (6) SCC 651.

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