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

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 it simply, negligence means a breach of a legal duty to care. Negligence implies carelessness in a situation that 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 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 a loss. In a case of medical negligence-

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

• Breach of the 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 skills 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 services 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 a 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 recognized consumer association, i.e., a 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 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 a fine or both. Section 80 and 88 of the Indian Penal Code contain defenses for doctors.

How can a Lawyer help you in case of medical negligence?

A lawyer experienced in the field of law relating to medical negligence is essential to further your interests in the quest for justice. A lawyer can best advise you on the merits of your case and the best plan of action to adopt moving forward. A medical negligence lawyer will not only help you gain a proper understanding of your rights and remedies available in law but also manage the documentation required in this regard to best put forward your case. A lawyer will prepare your matter, based on the facts and circumstances of your particular case and will also represent and argue on your behalf. He/She will be able to tell you if you should go for a civil remedy or file a criminal case, or both. A lawyer can also guide you and defend you, in case you are a doctor and a case of medical negligence has been filed against you. Thus, the first step that you should take is to consult a lawyer and get legal advice so that you can be guided upon the path to justice. You can also use LawRato's Ask a Free Question service to get free advice on your legal issue from expert lawyers.

Advocate Chikirsha Mohanty

4.0 | 2+ user ratings Greater Kailash - 1, Delhi
5 years

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