Medical Negligence in India; Laws and Procedures

What is Medical Negligence Meaning and Definition

Medical Negligence, as the name suggests is misconduct by a medical practitioner or doctor by the lack of providing enough care, thereby, resulting in the harm caused to the patient and thus a breach of a doctor's duties. Medical Negligence is a combination of two words i.e. & lsquo Medical' and & lsquo Negligence'. Negligence means an act done recklessly by an individual which results in foreseeable damage to another. Negligence is an offense under the Indian Penal Code, Indian Contracts Act, Consumer Protection Act, Tort, etc. Medical Negligence is a serious crime in India as professionals i.e. doctors are deemed to be experts in their field, and any patient that visits or is treated by a doctor expects to be healed or cured or bettered and not mistreated and harmed even more. A doctor is supposed to be careful while performing his/her duties, as him/her being negligent can directly result in harm to the patient, and could also be a matter of life and death. To err is human. Even though doctors are given the same pedestal as Gods in India and believe that their ailment will be cured and they will be completely healed, sometimes, even the doctors make mistakes which can result in immense hardships to patients.

Types or Examples of Medical Negligence in India

The most common types of medical negligence are as follows:

1. Misdiagnosis or Delayed Diagnosis

Probably, the most common example of medical negligence is a wrong diagnosis or a delayed one, or a failure to diagnose the disease/problem. The misdiagnosis could be due to lack of focus, incompetence, and non-availability of the correct tools. A failure to diagnose the patient correctly can even prolong the ailment and can even prove to be more fatal. A delayed diagnosis can also be medical negligence if the doctor would have reasonably diagnosed the same in a timely manner. Delay in diagnosis, especially in matters such as Heart attack, cancer, appendicitis, etc. can be dangerous to life.

2. Improper Administration of Medicines

Prescribing and/or administration of the wrong medicine(s) is one of the most common cases of medical negligence that have been reported. If the doctor administers the wrong medicine, it can be considered as gross negligence as it is obviously expected for the doctor to at least give the right medication after the diagnosis.

3. Inappropriate or Incorrect Surgery

Incorrect surgery is surely negligence during surgery and can occur due to several reasons such as lack of skills, lack of focus, taking shortcuts during the surgery to save time, etc. Incorrect surgery means a wrong surgery in itself, or a wrong method, or a wrong step or steps. Incorrect surgery could also be caused due to communication failure i.e. the surgical staff not being able to communicate properly. Unnecessary surgery or surgery that results in damaging of the organs, the nerves, tissues, etc. during the surgery may also be medical negligence.

4. Improper Administration of Anesthesia

Anesthesiologists provide pain relief for patients for the purpose of surgery. It is an important step for most surgical procedures. However, they not only have to control of the pain/sensation in body parts but also have control over the individual's breathing, body temperature, blood pressure, and even heart rate. Anesthesiologists are responsible for preoperative evaluation, consulting with surgical staff, and even postoperative management of the patients/clients. Mistakes at the time of anesthesia can happen with major as well as simple elective operations. Anesthesia if wrongly administered can even cause severe permanent damage to patients.

5. Improper or Wrong Medical Advice

A doctor is expected to give the correct medical advice or prescription. If the doctor advises incorrectly i.e. prescribes the wrong surgery or medicine, it could be considered as medical negligence, based upon the facts of the matter.

6. Leaving Foreign Objects in the Body during or after the Surgery

In some cases, a patient could suffer from infection or sepsis, days or weeks after a surgical procedure which could be caused due to a foreign object left inadvertently in the patient's body by the surgeon. Such behavior is negligent on the part of the doctor and can prove to be extremely serious and the patient can even die due to a septic shock.

7. Organs being Perforated or Lacerated

There have been several cases when the doctors have made potentially fatal mistakes of perforating or lacerating organs or bowels or vessels which go unnoticed and result in uncontrollable bleeding or beyond-repair organ damage. In the worst cases, it can also result in organ failure or even death.

8. Infection caused by Poor Hygiene

Poor hygiene can also cause complications/sepsis / further infections in patients. If the doctor fails to maintain basic and reasonable hygiene, it can result in damage to the patient's health. This has been seen especially during surgeries, if the surgeons have neglected cleaning their surgical tools, or caused an infection from one patient to another due to lack of cleanliness.

Components of Medical Negligence

It is stated that any negligent act comprises 3 major components. These can be termed as

• Existence of a Legal Duty

• Breach of that Legal Duty

• Damage caused by the Breach of such Legal Duty

1. Existence of a Legal Duty: Doctor's Duty to Attend the Patient with Care

When a doctor is approached by another individual, he/she trusts him or her to possess certain skills or special knowledge on a given issue and the doctor is under an implied legal duty to exercise due diligence and is expected to act in the ordinary course of a medical practitioner like his/her contemporaries. A doctor has a legal duty to carry out his practice without being negligent. Failure on the doctor's part to do something which he/she was incumbent to do, could be termed as negligence on his/her part. Thus, there is no written contract between the patient and the doctor but there exists a legal duty of care and a lack of proper care can hold the doctor / medical practitioner liable for breach of professional duty. A doctor or a medical practitioner (while attending to his/her patients), owes the patient the following duties of care:

• A duty of care in deciding whether or not to take the case

• A duty of care in deciding what treatment is best suited and given

• A duty of care while treating the patient.

2. Breach of that Legal Duty: Doctor acting in a Negligent Manner

If the doctor or the professional exercising the skill he is known to be a master at, does something which an ordinary person would not have done, or if he/she fails to do something with an ordinary prudent person would have done in a similar situation, there certainly exists a breach of legal duty. The standards used to determine the breach of legal duty are not very high but are those that are expected from a person in the ordinary course of the treatment by a professional.

3. Damage caused by the Breach of such Legal Duty: Injury or Damage to Health

For a wrong to be termed as medical negligence, it is important that there exists some damage caused by a breach of the legal duty. The injury caused by the negligent medical practitioner is liable for compensation. Several cases of medical negligence have been seen to result in major and severe injuries, and in some cases, even in the death of the patient.

Liability of Doctors or Medical Professionals

The liability of professionals committing wrong (negligent acts) can be of the following types, based on the injury that is suffered by the victim. These are:

1. Civil Liability

A doctor is a person who possesses special knowledge and skill in the field of medicine and is expected to use this knowledge to treat the patient with reasonable care. Thus, when a wrong is committed by such a professional, he/she is liable to pay damages in the form of compensation to the patient. Civil liability is usually when the claim for damages suffered is in the form of compensation. Only civil liability arises in less serious matters or cases. If a breach of duty of care is caused while operating upon a patient, the hospital or the doctor under whose supervision such negligent act or omission was caused, is held liable for such wrong. In other words, if someone is an employee of a hospital, then even if the employee hurts the patient by acting in an incompetent manner, the hospital will also be held vicariously responsible for the damage or injury caused. A consumer case also falls under the category of civil liability. Since the doctor is providing his/her services and the patient is receiving these services, a case in the consumer court can also be filed under the Consumer Protection Act.

2. Criminal Liability

Criminal liability arises in case of more serious matters. For example, if a patient has died after a treatment and it is found that it was due to the negligent behavior of the medical professional, a case under Section 304A of the IPC can be invoked of allegedly causing death by rash or negligent act. Criminal liability involves punishment to the wrongdoer. Thus, according to Section 304A of the Indian Penal Code , whoever causes the death of any individual due to a rash or negligent act (not amounting to culpable homicide), shall be punished for imprisonment up to two years or for fine, or both. Criminal and Civil cases in Medical Negligence can run side by side, which means that remedies under the two are not mutually exclusive but co-extensive. The two- civil and criminal differ in their main context and consequence. While criminal law aims to punish the offender who caused the injury due to his/her negligence, the objective of civil law is not to physically punish the wrongdoer, but to reimburse or compensate the victim. Thus, both civil and criminal remedies can be sought at once, depending upon the facts and circumstances of each case.

Duty of Doctor / Hospital to obtain Prior Consent of Patient

Apart from a doctor's duty of care towards the patient, there also exists a duty to obtain the prior consent of the living patients for diagnosis, transplants, research, disclosing medical records, treatment, etc. Consent can be given in several ways such as express consent (in oral or writing), implied consent (through patient's conduct), surrogate consent (by family members), and advance or proxy consent (consent by authorized persons). It has been held by courts that the performance of (non-emergency) surgery without taking consent of the patient may amount to an unauthorized invasion and interference with the patient's body. This can be termed as negligent behavior on the part of the doctor/hospital.

How to Report Medical Negligence in India Procedure

The procedure for reporting and in fact suing for medical negligence in India is dependent upon the different actions that are maintainable in law against medical practitioners. As already discussed above, a medical practitioner against whom negligence is alleged can be moved against in a criminal court, consumer court, and even a civil court under contractual liability if a contract exists between the parties. In addition to the above, a victim of medical negligence may also move for disciplinary action against a medical practitioner.

How to sue a doctor:

Prior to the enforcement of the Consumer Protection Act of 1986 , the civil liability for medical negligence was covered under the law of torts, with negligence being considered a tort. However, with the courts adjudicating in favor of the jurisdictions of Consumer commissions set up under the Act to adjudicate upon matters of medical negligence, this tort was also brought under the purview of consumer laws. The Act designates medical care and treatment under the umbrella of & lsquo services' and designated the persons availing such services as & lsquo consumers' of such service. Thus, now a civil action for monetary relief against a doctor, alleging medical negligence is brought before a consumer court.

Procedure for Civil action in Consumer court:

1. Prior to initiation of any action, a victim of medical negligence must engage the services of a trained advocate, specializing in the field of consumer laws to ensure optimum representation and advice.

2. Issuance of Notice - the first and foremost step in bringing an action against a doctor for medical negligence is to issue a legal notice. Such a notice must state the dispute of the complainant and state the reliefs being sought. This enables the parties to know the other's case and take action for resolution.

3. Determining the jurisdiction for filing a complaint - The Consumer Protection Act aides in deducing the pecuniary and territorial jurisdiction within which a complaint can be instituted as per the facts of each case. Pecuniary jurisdiction relates to the monetary value cases that can be maintained in a forum.

4. Opinion of Medical Practitioner - to maintain a successful case, it is imperative in matters of medical negligence, to obtain the expert opinion of a reputed medical practitioner fortifying the case set out. This helps in establishing a prima facie case for the complainant before the consumer commission.

5. Filing of Complaint - The next step, upon failure of resolution at the pre-litigation stage, is to have a consumer complaint drafted by an experienced advocate. Once a complaint has been drafted, it is to be filed in the consumer commission of appropriate jurisdiction. The process of figuring out limitations of the claim, court fees and of filing, etc, can be done with the aid of an advocate.

Procedure for Criminal action:

The offense provided under 304A of the IPC is a cognizable offense, thus the police can file an FIR( First Information Report) or investigate even without express orders from the court on this behalf.

1. To initiate criminal action for medical negligence, a party must file a complaint to the appropriate police station or have it submitted online.

2. The judicial process can also be set in motion through Section 190 of the Code of Criminal Procedure by filing a complaint before a magistrate, for taking cognizance of the offense.

3. The Magistrate can either take cognizance and carry out an inquiry himself or direct the police to register an FIR as per Section 156(3) of the Code of Criminal Procedure.

4. Upon registration of FIR, the investigation shall be carried out by the police for collection of evidence, interrogation, and statement of accused as also scientific analysis. The police may also arrest the accused if deemed necessary.

5. If upon completion of the investigation, the police conclude that the offense under Section 304A is made out, a charge sheet shall be filed before the Magistrate.

6. Thereafter, arguments shall be set forth before the court on the framing of charges and the trial will continue.

Procedure for Disciplinary Action

Action in disciplinary proceedings is aimed at imposition of penalties pursuant to disciplinary action by the governing body of medical professionals i.e., the Indian Medical Council. Action in such proceedings is taken pursuant to the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 formulated and enforced under the Indian Medical Council Act of 1956.

1. As with the other modes of initiating legal proceedings, the first step before initiating disciplinary proceedings should be to engage the services of an advocate to allow you to best set forth your case before the adjudicating authority

2. Making a complaint - a complaint can be brought before the appropriate medical council for disciplinary action by any aggrieved person for professional misconduct

3. Such a complaint shall be decided by the IMC within a period of 6 months through the help of a peer group as per guidelines prescribed by the Medical Council of India

4. During the pendency of the complaint, the accused doctor may be restrained from performing the procedure of practice that is under scrutiny, being the subject matter of the complaint

5. The appropriate medical council can take such action as necessary including suspension and also removal of the name of the accused from the accused doctor for such period as it deems appropriate

Where should a Medical Negligence case be filed?

A consumer complaint seeking relief against a medical practitioner can be filed in one of the following forums provided under the Consumer Protection Act:

1. National Consumer Disputes Redressal Commission

2. State Consumer Disputes Redressal Commission

3. District Consumer Disputes Redressal Commission

The appropriate forum for filing a complaint in the facts of each case shall depend upon the pecuniary and territorial jurisdiction of each commission.

Pecuniary Jurisdiction

• District Commission - Amount not exceeding Rs. 1 Crore.

• State Commission - Rs. 1 Crore to 10 Crore

• National Commission - Amount over Rs. 10 Crore

Territorial jurisdiction is determined by the place where the opposite party resides or usually carries on business or personally works for gain.

Similarly, for initiating criminal proceedings against a doctor under Section 304A of the IPC , being a cognizable offense, you must approach the appropriate police station for registration of an FIR. Upon refusal to record an FIR, the aggrieved person may also send the substance of the information to the Superintendent of Police. The SP upon being satisfied that the information discloses the commission of a cognizable offense under Section 304A can investigate the case himself or direct a subordinate officer to do so. Similarly, an aggrieved person may also approach a magistrate as per Section 190 of the Code of Criminal Procedure for it to take cognizance and if required order registration oF FIR under Section 156 (3).

Medical Negligence in Indian Evidence Act and Burden of Proof

The Indian Evidence Act sets forth detailed rules regarding the admissibility of evidence in judicial proceedings across India. Therefore, it is important to understand the requirements of the Indian Evidence Act to maintain and succeed in an action based on medical negligence. Primarily, the onus of proof in all judicial proceedings lies upon the complainant to prove its case as per the law provided under Section 101 of the Indian Evidence Act, 1872 . Therefore, generally, the burden of proof in a case of medical negligence rests upon the complainant, who alleges negligence on part of a doctor. This burden is not only limited to proving the harm/injury to the victim, but also to the existence of negligence on part of the medical professional. However, the standard of evidence required to prove a medical practitioner guilty of medical negligence is much higher than in other cases, given the specialized field and sensitive nature of work entrusted upon medical practitioners. However, once the complainant/victim satisfies the burden of proof with respect to the facts alleged by it, the onus shifts upon the other side i.e., the medical practitioner/hospital to whom negligence is attributed. It is settled law that negligence cannot simply be presumed and must be established by the party alleging it. While dealing with cases of medical negligence, courts in India are aided by the law under Section 45 of the Indian Evidence Act, 1872 . Section 45 of the act enables the court to better form an opinion on points of science, by allowing it to seek the opinions of experts in that field. Thus, in a case of medical negligence, it is common practice for both sides to bring the opinions of medical experts specializing in a particular field of medicine, to strengthen their case. The opinions of such experts, although relevant, are not binding upon the decision of the court. The primary role of such an expert is to enlighten the court of all the material placed before them, enabling them to arrive at a particular conclusion and the reasons for such opinions. This enables the court to better appreciate the intricacies and merits of the specialized field of medicine and arrive at a well-informed and correct decision in binding liability in the case before it. Such intelligible, convincing, and tested opinions of experts combined with all other relevant evidence placed before the court by either side to a case, form the basis of the court's decision in a case of medical negligence. With several landmark judgments operating in the field of medical negligence, it has now become mandatory for any complainant to produce prima facie evidence in court along with its complaint in the form of the reliable opinion of another competent medical practitioner supporting the case set forth therein.
 

Death Due to Medical Negligence in India

Given the sensitive nature of work in the field of medicine, the likelihood of negligence on part of a medical practitioner resulting in the death of a patient is highly probable. The Indian judiciary has been presented with several cases attributing the death of a patient to medical negligence on part of doctors and hospitals, especially in cases of complex medical procedures. The law in India provides victims of medical negligence the ability to maintain simultaneous criminal as also civil remedies against the doctor/hospital. The Indian Penal Code, 1860 provides the criminal liability for cases of death of a person due to negligence. Section 304A of the Indian Penal Code states, & lsquo whoever causes the death of a person by a rash or negligent act not amounting to culpable homicide shall be punished with imprisonment for a term of two years, or with a fine or both'. Thus, Section 304A comes to the aid of families of victims who died due to medical negligence by doctors/hospitals. The Indian Penal Code, however, also provides certain exceptions to criminal liability which come to the aid of medical practitioners in fitting cases. These exceptions are provided under Section 80 and Section 88 of the Act respectively. Section 80 - 'Accident in doing a lawful act & mdash Nothing is an offense which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution...' Section 88 - 'Act not intended to cause death, done by consent in good faith for person's benefit.& mdash Nothing which is not intended to cause death, is an offense by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm...' In fact, the illustration provided under Section 88 in the Indian Penal Code itself refers to a situation wherein if a surgeon performs a procedure on a patient with his consent and without the intention to cause his death, shall be exempt from criminal liability in case of death of the patient. However, doctors can be found liable under Section 304A, if it is proved that the death was a direct result of the rash and negligent act of a doctor without any other person's intervention. Medical practitioners found guilty under Section 304A can be imprisoned and also be proceeded against in a consumer court for monetary compensation due to deficiency in service attributable to negligence. A party initiating action in a criminal court can also simultaneously sue such a doctor in civil court for compensation due to the negligence resulting in the death of the patient. Both these actions are mutually co-extensive since the reliefs sought in both are entirely different.

Provision of Appeal in Medical Negligence Cases

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. Similarly, for criminal cases, from a decision of the district court, an appeal can be filed in the High Court, and from the High Court, an appeal can be filed in the Supreme Court.

Limitation or Time Period to file Case or Appeal for Medical Negligence

A consumer complaint in the consumer forum against the doctor or hospital or medical practitioner must be filed within 2 years from the date of the unfortunate incident / negligent act / deficiency in service arises. However, it can also be filed after 2 years if the complainant satisfies the District Forum that he/she has sufficient reasons for not filing the complaint within such period of 2 years.

As for the appeal, an appeal petition from District Forum to State Commission, from State Commission to National Commission, and from the National Commission to Supreme Court shall be filed within 30 days from the date of receipt of Order from the present Forum/Commission.

Things you need to Collect / Documents Required for Medical Negligence case in India

The following documents would be beneficial to have in your possession to best present your case before a court of law:

1. Diagnosis by accused doctor/hospital

2. Medical prescriptions issued by the accused doctor/hospital

3. Medical Reports of tests conducted by the accused doctor/hospital

4. Documentary evidence of procedures and their results conducted by the accused doctor/hospital

5. Any other documentary proof of the victim being treated by the accused doctor/hospital and the duration of such treatment

6. The medical report of an independent doctor/hospital certifying the injury/harm/death caused to the victim of medical negligence

7. Medical Opinion of an independent doctor/hospital certifying that the harm/injury/death alleged is a direct result of medical negligence on part of the accused doctor/hospital

8. Copy of legal notice addressed to the accused doctor/hospital if any

9. Reply to the legal notice by the accused doctor/hospital, if any

10. Any other correspondence of relevance between the parties relating to the dispute

Collection of Evidence Related To Medical Negligence

The collection of evidence in a case of medical negligence becomes a very specialized and tedious task that can be the deciding factor of your success in legal action against a doctor/hospital. All relevant documents pertaining to the treatments/procedures carried out by the delinquent doctor/hospital become vital evidence in enabling experts as also a judges in understanding the conclusions arrived at by the professionals with respect to the treatment of the patient. This allows the court to fully understand why one course of action was adopted over another by a doctor and subsequently enables a detailed investigation into its correctness. The documents referred in the detailed section in this behalf may be referred to for more details. Further, a doctor against whom medical negligence is alleged may also be arrested in exceptional circumstances for furthering the investigation or collecting relevant evidence if there is a chance that such doctor may flee.

Punishment for Medical Negligence in India

As stated above, a case of medical negligence can be pursued in a court of criminal law under the specific provisions of the Indian Penal Code, 1860 in this regard. Pertinently, the remedy in criminal law is co-extensive with civil remedies. Thus an aggrieved victim/patient can initiate both civil and criminal proceedings in a court of law for medical negligence. Section 304A of the Indian Penal Code provides for death due to negligence and states that & lsquo whoever causes the death of a person by a rash or negligent act not amounting to culpable homicide shall be punished with imprisonment for a term of two years, or with a fine or both'.

Compensation for Medical Negligence in India

Compensation for medical negligence falls under the civil remedies available to a victim of medical negligence. The law in India entitles a victim of medical negligence to maintain a complaint in the consumer commissions set up under the Consumer Protection Act seeking monetary compensation. Therefore, a victim by way of a consumer complaint in the appropriate consumer commission can maintain and succeed in receiving monetary compensation for medical negligence, quantified as per the facts of each case and varying degrees of harm/injury/death caused to the patient/victim.

Challenges Faced By the Victims Of Medical Negligence

Given the specialized nature of the medical profession, the primary challenge an ordinary person faces is the sheer lack of knowledge of the field of medicine, which prevents identification of negligence when a person suffers death or harm due to negligence on part of a medical professional.

Further, lack of consumer awareness also leads to fewer cases being filed against doctors/hospitals in cases of medical negligence as the ordinary person is often unaware of its rights under law against medical negligence.

Another barrier to justice is the high standard of proof required to hold a medical professional guilty of medical negligence. The varying opinions on identical issues of medical situations and diagnosis, provide a tough task for any adjudicating authority to hold a doctor liable for medical negligence.

Five Things you Need to do in case of Medical Negligence

1. Consult independent doctors and physicians to obtain second or even third opinions on the diagnosis and procedures adopted by the doctor/hospital to whom you attribute medical negligence.

2. Consult a lawyer specialising in the field of medical negligence to advise you on the merits of your case and the best way forward in your quest for justice.

3. Create a detailed record of all relevant documents pertaining to the medical treatments/procedures forming subject matter of your case on medical negligence.

4. Take immediate action upon the advice of your lawyer to avoid your claim being barred under statute of limitations.

5. Obtain expert opinion of medical professionals to strengthen the merits of your claim to be filed along with your complaint to show prima facie case in your favour.

Testimonials - Real Cases of Medical Negligence in India

1. “ During my aunt's operation, the doctor forgot a pair of scissors inside of her and we luckily found it soon after this irresponsible act, thanks to another doctor. We have filed a complaint against the doctors who operated on her and are hoping for her to get compensated”

Mr. Faqir Ahmed

2. “ During my grandfather's cataract surgery, the Ophthalmologist negligently implanted an expired lens which caused blindness in his left eye. We took the help of our lawyer and thankfully got compensated by the Consumer Forum.”

Ms. Malika Trehan

3. “ My great grandmother passed away due to the negligence of the doctors at a renowned hospital. Due to the carelessness / negligent act of the doctor i.e. in a major hurry for the next operation, he did not sterilize the medical equipment and as a result of this, a deadly infection was transmitted into her blood which resulted in an infection of most of her organs and ultimately in her death. My family took the help of a lawyer and filed a case against the hospital and the doctor”

Mrs. Priya Kumar

4. & quot My uncle became paraplegic and lost his sound after he underwent a surgery for removal of kidney stones. They filed a case against the doctors and the High Court declared that the hospital and the doctors were negligent and that my uncle had lost his sound due to medical negligence. He was awarded compensation to the extent of Rs. 20 Lacs with an interest of 6% per annum.& quot

Mr. Raghuveer Handa

How can the Doctor Protect Himself?

In case of Criminal Liability - in a criminal case instituted against a medical practitioner, under provisions of the IPC for medical negligence, such medical practitioner can claim protection under Section 80 & Section 88 respectively. Section 80 - 'Accident in doing a lawful act & mdash Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution...' Section 88 - Act not intended to cause death, done by consent in good faith for person's benefit.& mdash Nothing which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm...' The very illustration provided under Section 88 in the Indian Penal Code refers to a situation wherein if a surgeon performs a procedure on a patient with his consent and without the intention to cause his death, shall be exempt from criminal liability in case of death of the patient. In case of Civil liability - to best defend a civil action for medical negligence, a doctor must present the best evidence in its possession to justify his case. In addition, the accused doctor should also seek the expert opinion of another independent medical practitioner which supports the procedure adopted by the accused doctor, under Section 45 of the Indian Evidence Act . The primary objective of the accused doctor must be to prove the absence of negligence on the touchstone of the tests laid down by the Indian Judiciary through various precedents.

When is a Doctor not Liable for Medical Negligence?

1. If the doctor chose a method of treatment due to the firm belief that it would work and this treatment was a medically certified one at the time

2. If the doctor took all reasonable care and despite that the patient died. The doctor is not responsible for healing every cure and cannot be held accountable for death caused even when the doctor took all reasonable steps to save the patient.

3. If the doctor took all precautions and ensured his/her duty to care was carried out and despite that a wrong diagnosis was made even after following the best practices and the treatment failed due to such diagnosis.

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.

Judgments: Cases of Medical Negligence in India

1. Sishir Rajan Saha v. The state of Tripura

AIR 2002 Gauhati 102

In this case, it was held that if a doctor did not pay enough attention to the patients in government hospitals as a result of which the patient suffers, the doctor can be held liable to pay compensation to the patient.
 

2. Jacob Mathew v. State of Punjab

AIR 2005 SC 3180

The Supreme Court in this case explained that a professional entering into a certain profession is deemed to have knowledge regarding that profession and it is assured impliedly by him that a reasonable amount of care shall be taken to profess his profession. The person can be held liable under negligence if he did not possess the required skills to profess or he failed to take essential amounts of care to profess the said profession.
 

3. Gian chand v. Vinod kumar Sharma

AIR 2007 (NOC) 2498 (H.P.)

It was held that shifting of the patient from one ward to another in spite of the requirement of instant treatment to be given to the patient resulting in damage to the patient's health then the doctor or administrator of the hospital shall be held liable under negligence.
 

4. Jagdish Ram v. State of H.P

AIR 2008 H.P. 97

It was held that before performing any surgery the chart revealing information about the amount of anaesthesia and allergies of the patient should be mentioned so that an anaesthetist can provide ample amounts of medicines to the patient. The doctor in above case failed to do so as a result of the overdose of anaesthesia the patient died and the doctor was held liable for the same.
 

5. Mr. M Ramesh Reddy v. State of Andhra Pradesh

2003 (1) CLD 81 (AP SCDRC)

In this case, the hospital authorities were held to be negligent, inter alia, for not keeping the bathroom clean, which resulted in the fall of an obstetrics patient in the bathroom leading to her death. A compensation of Rs. 1 Lac was awarded against the hospital.
 

6. Dr. Suresh Gupta's vs Govt. of NCT

AIR 2004 SC

The Supreme Court in 2004 held that the legal position was quite clear and well settled that whenever a patient died due to medical negligence, the doctor was liable in civil law for paying the compensation. Only when the negligence was so gross and his act was as reckless as to endanger the life of the patient, criminal law for offence under section 304A of Indian Penal Code, 1860 will apply.
 

7. Dr. Laxman Balkrishna Joshi vs. Dr. Trimbark Babu Godbole and Anr.,

AIR 1969 SC 128

In this case, it was was laid down that when a doctor is consulted by a patient, the doctor owes to his patient certain duties which are: (a) duty of care in deciding whether to undertake the case, (b) duty of care in deciding what treatment to give, and (c) duty of care in the administration of that treatment. A breach of any of the above duties may give a cause of action for negligence and the patient may on that basis recover damages from his doctor. In the aforementioned case, the apex court interalia observed that negligence has many manifestations & ndash it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, willful or reckless negligence, or negligence per se.

Legal Notice to Doctor Format / Draft

A sample or draft or format of legal notice to be sent to the doctor in your advocate's name has been given below:

Ref. No& hellip & hellip & hellip & hellip & hellip . Dated ____, __________

Regd. Advocate

& hellip & hellip & hellip & hellip & hellip & hellip & hellip & hellip & hellip & hellip & hellip ..

& hellip & hellip & hellip & hellip & hellip & hellip & hellip & hellip & hellip & hellip & hellip ..

TO,

Mr./Ms. & hellip & hellip & hellip & hellip & hellip & hellip & hellip & hellip

Doctor/ Medical Superintendent/Medical Practitioner,

& hellip & hellip & hellip & hellip & hellip & hellip & hellip .. Hospital,

& hellip & hellip & hellip & hellip & hellip & hellip & hellip ..

Dear Sir,

Under the instructions and on behalf of my client Mr./Ms. & hellip & hellip & hellip & hellip & hellip . resident of & hellip & hellip & hellip & hellip & hellip & hellip & hellip .. I hereby give you a legal notice as follows:

1. On or about & hellip & hellip & hellip & hellip & hellip & hellip & hellip .. you were the Doctor/Surgeon at & hellip & hellip & hellip & hellip & hellip & hellip & hellip .. Hospital. & hellip & hellip & hellip & hellip & hellip & hellip & hellip .. and you were also the Head of the Department of Surgery of the said hospital.

2. Mr./Ms.& hellip & hellip & hellip & hellip & hellip . was admitted to the said Hospital& hellip & hellip & hellip & hellip & hellip & hellip upon the instructions of _________ on & hellip & hellip & hellip & hellip & hellip .. for surgical operation for removal of kidney stones under your care and supervision and & hellip & hellip & hellip & hellip & hellip . was fixed as the date of operation of the said Mr./Ms. & hellip & hellip & hellip & hellip & hellip & hellip .& hellip

3. When the said Mr./Ms. & hellip & hellip & hellip & hellip & hellip . was being operated, you were personally present in the operation theatre and doing the operation with the assistance of some junior doctors.

4. After removing the stones, you, while undertaking to stitch, had negligently, carelessly and willfully left a cloth towel inside the body, due to which my client started to complain of severe pain in the kidneys and inability to urinate for which you had prescribed some antibiotics on various visits.

5. When my client could not get treatment for his pain, he/she went to & hellip & hellip & hellip & hellip & hellip & hellip & hellip .. and consulted Dr. & hellip & hellip & hellip & hellip & hellip & hellip of & hellip & hellip & hellip & hellip .. Nursing Home & hellip & hellip & hellip & hellip & hellip & hellip who opined that there is some foreign element around the kidney, for which my client had to be operated on & hellip & hellip & hellip & hellip & hellip & hellip in & hellip & hellip & hellip & hellip & hellip & hellip . Nursing Home and a cloth towel was removed from inside the body and after the removal of the said towel, my client had got relief from pain.

6. My client Shri & hellip & hellip & hellip & hellip & hellip & hellip & hellip .. had to undergo severe physical and mental suffering for the negligence, carelessness, and mistake committed by you and he/she had to spend a lot of money for treatment of pain, which was caused due to leaving the piece of cloth inside the body by you, while undertaking operation for removal of stones in the kidney.

7. The said & hellip & hellip & hellip & hellip & hellip . therefore demands from you Rs. & hellip & hellip & hellip & hellip .. as damages for physical as well as mental suffering and agony, Rs. & hellip & hellip & hellip & hellip & hellip & hellip & hellip .. as expenses incurred by him/her in the operation and treatment, Rs. & hellip & hellip & hellip & hellip & hellip & hellip . as expenses incurred by him/her in transport, hotel, etc. totaling Rs. & hellip & hellip & hellip .. and I hereby give you notice that if the said amount is not paid timely, the said Mr./Ms.& hellip & hellip & hellip & hellip & hellip & hellip & hellip .. will, on the expiry of two months from the date of service of this notice, file a suit against you for the recovery of Rs. & hellip & hellip & hellip & hellip & hellip as damages and expenses incurred by him, at your entire risk as to cost and consequences.

A copy of this Notice has been preserved in my office for record and future course of action.

Yours faithfully,

& hellip & hellip & hellip & hellip & hellip & hellip & hellip ..

Advocate

Advocate Chikirsha Mohanty

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

GET LEGAL HELP

GET LEGAL HELP

Googling your legal issue online?

The internet is not a lawyer and neither are you.
Talk to a real lawyer about your legal issue.

TALK TO A LAWYER