Law on Medical Negligence in India: How and when to file a case


August 29, 2018
By Advocate Chikirsha Mohanty



Around 52 lakh medical injuries are recorded every year in India and 98,000 people in the country lose their lives in a year because of medical negligence. Gone are the days when you can trust your doctor's advice with blindfolds. With the unavoidable advent of profiteering in medical treatment, it is absolutely critical that patients know their rights and how to fight against medical negligence. Courts also award exemplary compensation to the aggrieved patients. In 2015, the Supreme Court passed a landmark verdict and awarded a young victim who lost her eyesight owing to the incompetence of the doctor nearly Rs. 2 crores.
 

What is medical negligence?

If we put simply, negligence means a breach of legal duty to care. Negligence implies carelessness in a situation which mandates carefulness. A breach of the said duty entitles the patient to take an action against negligence. The person who is offering medical advice and treatment is expected to have the skill and knowledge to provide and administer the suitable treatment. Nobody's perfect and the most renowned and expert doctor may also commit an innocent mistake in detecting or diagnosing a disease.  

Medical negligence is said when there is a duty of care and there is a breach of the said duty and because of that, the complainant has suffered loss. In a case of medical negligence-

  • There is a legal duty of the party complained to exercise due care of the party complaining about the former’s conduct within the scope of his duty.

  • Breach of said duty

  • The consequential damage that follows


A doctor is held liable only if can prove that he/ she is guilty of failure that no doctor with ordinary skills would be guilty of if acting with reasonable care. An error of judgment is considered as negligence only when if he has taken all the reasonable care required. Doctors are expected to exercise ordinary skill of care.
 

What to do if you suffer from a medical negligence case?

In case you are aggrieved of medical negligence, you can file a civil suit or criminal suit.

Under the Indian Penal Code, the following provisions deal with medical malpractice-

  1. Section 52- Good Faith

  2. Section 80- Accident in doing a lawful act  

  3. Section 81- Act likely to cause harm but done without criminal intent and to prevent other harm

  4. Section 304 A- Causing death by negligence

  5. Section 337- Causing hurt by act endangering life or personal safety of others
     

Filing a case of medical negligence

  • A complaint can be filed in the District Consumer Disputes Redressal Forum if the value of services and compensation claimed is less than 20 lakhs or before the state commission if the value does not exceed more than 1 crore rupees. If, however, the value of goods or service and the compensation exceed more than 1 crore rupees, the National Commission is to be approached.  

  • After you have filed the case, the forum will summon the parties to make their case.

  • When you file a consumer case under the Consumer Protection Act it will not make a case criminal case. This implies under a consumer case you can only claim compensation.
     

Proving negligence

The burden of proving negligence lies with the complaint. Therefore, it is imperative for the patient to bring forth clear evidence of medical negligence.
 

Who can file a complaint?

A consumer or any recognised consumer association, i.e., voluntary consumer association can file a consumer complaint.
 

What is the cost involved in filing a complaint?

There is a minimal fee for filing a complaint before the district consumer redressal forum.
 

Is there any provision of appeal?

An appeal against the decision of the District Forum can be filed before the state commission. An appeal then goes from the State Commission to National Commission and from the National Commission to the Supreme Court. The time limit within which the appeal should be filed is 30 days from the date of the decision of in all cases.
 

How does the adjudication of liability take place?

When the complainant files a written complaint, the forum after admitting the complaint sends a written notice to the opposite party asking for a written version to be submitted within 30 days. Therefore, subsequent to proper scrutiny, the forum will ask for either filing of an affidavit or production of evidence in the form of interrogatories, expert evidence, medical literature and judicial decisions.  
 

How should you proceed with the medical negligence case?

First, you must gather and compile all the medical records. As per the guidelines of the Medical Council of India, the patient should get all his medical records within 72 hours from the date and time of the appointment.
While fighting a medical negligence case you may face challenges like how can a complainant prove the doctor’s negligence or how to get a qualified lawyer.
 

Punishment for medical negligence

Under section 304A of the Indian Penal Code prescribes punishment for a term of two years or with fine or both. Section 80 and 88 of Indian Penal Code contains defences for doctors.



 

These guides are not legal advice, nor a substitute for a lawyer
These articles are provided freely as general guides. While we do our best to make sure these guides are helpful, we do not give any guarantee that they are accurate or appropriate to your situation, or take any responsibility for any loss their use might cause you. Do not rely on information provided here without seeking experienced legal advice first. If in doubt, please always consult a lawyer.


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very helpful

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I want to know more about this law. Good work

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Surendra on May 22, 2019
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Kishore on Apr 12, 2019
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Geeta on Apr 09, 2019
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Kaushal on Apr 22, 2019
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