Contracts of personal service are excluded from the purview of Consumer Protection Act, 1986. However, services availed from doctors / medical practicioners are treated as contract of service and doctors can be sued in the consumer courts. In Indian Medical Association Vs. VP Shantha and others, SC 1995, the Supreme Court has observed as follows:
- Although Indian Medical Council Act has no provision to control medical practicioners and take disciplinary action against doctors, consumer can approach consumer courts for remedy.
- Theory of res ipsa loquitur (a thing that speaks for itself). In case any instrument is left in the body during surgery or treatment, or a wrong body part is removed then there is no need of further investigation to prove negligence.
- The doctor is not the guarantor
- Error of judgement is different from wrong diagnosis.
- When doctors take up a case, they need to decide whether s/he has to take up the case or not, if taken up then s/he has to decide what treatment to be given and whether the treatment given is as per the diagnosis made.