Table of Contents
Introduction
Everyone wants to live a healthy life since health is vital in people’s lives. People seek assistance from hospitals, clinics, and other healthcare facilities to live a healthy lifestyle. When it comes to their health, people have unquestioning faith in hospitals and medical professionals. And as a result, doctors, hospitals, and clinics frequently abuse the confidence of the public.
When certain medical procedures are the subject of dishonest, unfair, and misleading advertising, it counts as deceptive medical procedures. These dishonest and abusive business techniques can also affect customers who are in long-term care institutions, such elderly patients in nursing homes. As a result, individuals from many social strata fall victim to such dishonest medical procedures.
Deception refers to inaccurate falsehoods or any act that deceives, and such deceptive acts are classified as unfair business practices. False and incorrect advertising, unfair pricing, the selling and purchase of dubious drugs, etc. are other unethical commercial practices.
This article attempts to shed light on the misleading medical procedures, products and medical negligence, as well as how they relate to the Consumer Protection Law.
Who is a Consumer?
According to Section 2(7) of the Consumer Protection Act of 2019, a consumer is someone who purchases products or services in return for money and uses them for personal use.
A consumer is also a person who is:
- A patient who uses a hospital or a doctor’s services and gives them money in exchange for the services;
- Anyone who pays for the services the patient receives;
- Any person who is the patient’s father or mother or spouse;
- Any person who is the patient’s heir or descendant.
How does Deceptive Healthcare Practice come under Unfair Trade Practice?
The Consumer Protection Act of 2019’s Section 2(47)(1) defines an unfair commercial conduct as producing fake items, selling them, or using misleading business methods to provide services. Misrepresentation, misleading or deceptive advertising or representation of an item or service, tied selling, fraudulent offers of gifts or prizes, deceptive pricing, and noncompliance with manufacturing rules are a few examples of unfair business practices. Therefore, such services will fall under unfair trade practices when hospitals or medical professionals take advantage of the public or deceive the public by offering them fraudulent or misleading services.
Here are some instances of dishonest medical practices:
- Billing for goods and services that are not medically necessary;
- Charging for services or supplies in an unreasonable manner;
- Billing and payment for services that have not been adequately documented;
- Distorting or fabricating the quality of service offered.
Healthcare Practices under The Consumer Protection Act
According to a recent ruling by the Supreme Court in the matter of Medicos Legal Action Group v. Union of India, services provided by physicians and other medical professionals are not exempt from the 2019 Consumer Protection Act’s protections.
The Consumer Protection Act of 1986 outlines rules for the timely resolution of customers’ complaints against unethical and misleading medical practices and offers a venue to defend and maintain their rights.
Medical Negligence under The Consumer Protection Act
The definition of ‘Medical Negligence’ has remained unchanged over the time- “Failure to exercise reasonable skill as per the general standards and the prevalent situation is termed as medical negligence.”
Medical negligence is the lack of a reasonable degree of expertise in a certain profession or sector that he engages in with respect to the expert who is treating the patient, where the expert attendant is desperately needed. Doctors and other medical professionals are held in high regard in society, and they always strive to deliver or supply the finest care possible for the patient. They accept this duty with the required care and negligence and to the best of their knowledge, despite the fact that there are numerous medical negligence cases that have already been heard in consumer court or criminal civil court in accordance with the Consumer Protection Act of 1986.
In the famous Supreme Court case Parmanand Kataria vs. Union of India, it was decided that every doctor, whether practising in a government hospital or not, has a duty to use their professional skills to protect life.
The responsibility owed by a doctor to his patient is to have a fair level of ability and knowledge and to apply this reasonable level of care to the patient, according to the Supreme Court’s ruling in the case Laxman vs. Trimback. It is not required for the doctor to guarantee that every patient who visits him will be healed. He must make sure to treat the patient with reasonable care and expertise.
How does Medical Profession come under The Consumer Protection Act?
The relationship between Patients and Doctors is defined under Consumer Protect Act to an extent where the right of both parties should be equal as much as it should do justice to both of them.
Indian Medical Association vs. V P Shantha, a major Supreme Court decision, placed the medical profession under Section 2(1)(o) of the Consumer Protection Act 1986.
The Consumer Protection Act was created primarily to safeguard the interests of customers, yet some people are being dishonest and extorting medical professionals. Because the legislation also protects the rights of medical professionals, physicians must remain concerned. If a complaint is determined to be foolish or annoying, as stated in Section 26 of the Consumer Protection Act, the consumer panel will dismiss the case and require the complainant to make a minimum payment of ten thousand rupees to the opposing party.
Fake Health and Cosmetic Care Advertisements
Due to the influx of quacks into the marketplace, purchasing health products nowadays is one of the surest ways to lose money as well as our minds! They resemble the largest, most heinous, and most dangerous monsters from Lord of the Rings or a Stephen King horror story!
The Advertising Standards Council of India (ASCI) has banned a number of recent advertisements produced by some of the biggest pharmaceutical companies in India for the sale of their tablets, clinics, potions, and other treatments for a variety of ailments because they violated the Drugs & Magical Remedies Act as well as the Consumer Protection Act, 2019. This Act prohibits the promotion of goods that promise to treat fatal conditions including cancer, diabetes, AIDS, paralysis, baldness, and a host of other conditions.
As the following cases will demonstrate, the law has not been able to stop the stream of misleading ads.
Lotus Herbals Youth RX
A pretty well-known company by the name of Lotus Herbals Ltd. was advertising a supplement called Lotus Herbals Youth RX, which it said had 10 times more gene plex youth compound (whatever that is) and could effectively reverse ageing. Naturally, Shilpa Shetty, a well-known actress, also appeared in an advertisement praising the product.
The Advertising Standards Council of India received a complaint and demanded that the firm back up its assertions. But Lotus didn’t answer any of its questions. The ASCI decided that they were making claims about the effectiveness of their product without any supporting evidence, and they were also guilty of disobeying the new rules it had established governing the use of celebrities in advertising.
Suraksha Pharma Kanthari Plus Capsules
Another brand, Suraksha Pharma, advertised its Kanthari Plus Capsules, promising customers that they will treat heart disease, high cholesterol, thyroid problems, diabetes, obesity, failing eye sight, Alzheimer’s, and even kidney function. Its advertising are unsettling because of the poor English, ambiguous wording, and irresponsible promises made in them.
The ASCI forbade this commercial on the grounds that it would persuade people to use this medication without competent medical supervision. The Council claims that because the illnesses they claim to have treatments for are serious and often deadly, the ambiguous terminology risks misleading and harming customers.
Patanjali Products
Purchasing goods from Patanjali Ayurved Limited online or in person has become more and more popular. The shelves of even the biggest retail chains have Patanjali items. However, the ASCI found 25 commercials for this company on TV, print, and product packaging to be deceptive and lacking in supporting evidence.
According to Patanjali Dant Kanti, it can treat gum swell and bleeding, Pyorrhoea, yellowing teeth, and other conditions. But it was unable to convince the ASCI of this. If one carefully examines the product packets, it is clear that they are not entirely Ayurvedic and contain a number of chemicals.
Consult your doctor before purchasing any medications, whether you plan to buy them online or at a local pharmacy. Avoid wasting money and putting your life in danger by believing false claims made in flashy advertisements. Regardless of how well-known the advertiser or the firm is.
How did Fraudulent Healthcare Practices affect the Covid-19 Pandemic?
Even before the epidemic, there were instances of healthcare negligence, but they negatively increased during the pandemic. Healthcare fraud can have grave repercussions, including the inability to pay for respirators, needless medical treatments, or the prescription of inferior pharmaceuticals. People flocked to hospitals in droves during the pandemic’s initial wave to request hospital beds and oxygen tanks. To get masks and hand sanitizers, people hurried to pharmacies.
In private hospitals, an RT-PCR test used to cost Rs. 1000 or more. Later, as the number of COVID 19 cases significantly declined, the price dropped to Rs. 500 or less. As a result, the pandemic has significantly altered the economy and the healthcare system, two fields where fraud and malpractice are most likely to occur.
More people died than the thousands that were officially counted each day. Hospitals were crowded to capacity. The supply of medicines, vaccines, oxygen, and other necessities were running out quickly. Profiteers from the epidemic were filling the gap. Supplies like medicine, oxygen, and others were purchased and sold over the phone or the internet. The salesmen took advantage of the despair and sadness of the family. Some of the items sold were fraudulent, while others could have been harmful.
What Actions can be taken against such Practices?
False and misleading ads for any good or service are defined under Section 2(28) of the Consumer Protection Act, 2019. This section defines a misleading advertising as one that falsely represents a product or service’s nature, content, quality, quantity, and other essential characteristics while purposely omitting other vital elements. This section contains provisions relating to dishonest and fraudulent medical practises. Section 21 of the Act grants the central authority the power to impose penalties against any fraudulent or deceptive advertising.
The consumer has the right to take legal action against an act or conduct that violates or is contrary to their rights. There are 6 rights granted to customers under Section 2(9) of the Consumer Protection Act 2019:
- Right to Safety
- Right to Information
- Right to Choose
- Right to be Heard or Right to Representation
- Right to Seek Redressal
- Right to Consumer Education
The patient may file a formal complaint about medical negligence:
- If the amount of services and compensation sought totals less than 20 lakh rupees, to the District Forum;
- If the value of the products or services and the compensation sought do not exceed one crore rupees, the case may be brought before the State Commission;
- It may be brought before the National Commission, if the value of the goods or services and the compensation sought do exceed one crore rupees.
Conclusion
There are steps that may be performed to stop medical malpractice and healthcare fraud. Prevention is more important than treatment when battling healthcare fraud. We shall address fraud as a cost to be monitored and minimised like any other as soon as money is made available for better patient care.
Both patients and providers are impacted by the pervasive issue of Medicare and Medicaid fraud. Healthcare fraud is a crime that’s on the rise, drawing both novice and seasoned offenders, and sweeping the country like wildfire. Given the quantity of money that flows through the healthcare system, the chances and temptations for fraud are practically limitless. The prevalence, consequences, and preventive methods of healthcare fraud must be made known to the general population. If public understanding of this issue doesn’t increase and no meaningful changes are made soon, we might be in for a real tragedy. Identity fraud and unauthorised medical procedures that are covered by Medicare or Medicaid should be avoided by beneficiaries.
The regulations regulating false claims, kickbacks, and recommendations must be understood by doctors and pharmacists since fraud can occur whether it is deliberate or not. Pharmacists who are aware of these hazards, particularly recent advances regarding opioid and pharmacogenetic-related fraud, may protect both the health of their patients and the security of their company. Despite the fact that it is difficult to completely eradicate the dishonest minority, research has shown that by fostering a strong anti-fraud culture and strong peer pressure, the number of the honest majority may increase.
This article is authored by Tanisha Rana, student at Vivekananda Institute of Professional Studies, GGSIP University
