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.
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-
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.
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-
The burden of proving negligence lies with the complaint. Therefore, it is imperative for the patient to bring forth clear evidence of medical negligence.
A consumer or any recognised consumer association, i.e., voluntary consumer association can file a consumer complaint.
There is a minimal fee for filing a complaint before the district consumer redressal forum.
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.
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.
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.
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.
In the judgment given in Bolam V/s. Friern Hospital Management Committee (1957) 2 All ER 118. , McNair, J., while addressing the jury summed up law as under:-
“The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is a well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. I do not think that I quarrel much with any of the submissions in law which have been put before you by counsel. Counsel for the plaintiff put it in this way, that in the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. That is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards; and if a medical man conforms with one of those proper standards then he is not negligent.”
There are three essential elements to proving a claim for medical negligence. They are as follows:
REASONABLE STANDARD OF CARE: The “standard of care” is what a reasonably prudent medical care provider within the same field or specialty should do in caring for you under the circumstances. In a majority of cases, the opinion of other medical practitioners as to what their conduct would have been under the same circumstances is taken on record to establish what a reasonably prudent medical practitioner should have done under the circumstances.
DEFINITION OF MEDICAL PRACTITIONER: One does not have to be a doctor to be held guilty of medical negligence. Any healthcare provider, like a nurse or an anaesthetist, can also be held liable for medical negligence if they fail to act in a prudent and reasonable manner.
PROVING CAUSATION: For a patient/next of kin of patient who believes that they have been a victim of medical negligence, it is necessary to prove causation. The victim will have to prove that not only did the harm was a result of the medical negligence, but that it was also a reasonably foreseeable injury that would’ve resulted from the said medical error. Causation, which is of two types (1) actual causation and (2) proximate causation, is usually proven through the testimony of one or more qualified experts.
RES IPSA LOQUITOR is a Latin phrase which translates into “the thing speaks for itself”. This is an exception to proving of causation for cases where causation is assumed owing to the fact that the resultant injury would have resulted only from a medical error. Eg. In a case of invasive surgery where the medical practitioner leaves an instrument or any foreign material inside the body of the victim, causation would not have to be proved.
INFORMED CONSENT: An ‘informed consent’ is a document that patients sign prior to undergoing medical treatment or a surgical procedure. However, the fact that the patient signed an informed consent is not a bar to bringing a claim for medical negligence. In fact, the consent is purportedly to inform the patient of the known and anticipated risks and potential poor outcomes, from a given treatment plan or procedure. It does not constitute a waiver of the patient’s right to not be harmed by errors or negligence by the doctor, nurse, or other medical provider. In other words, the patient has the right to be informed that certain adverse (bad) outcomes are a risk of a given treatment or procedure, even where the doctor and medical staff is reasonably prudent in providing the treatment – that is the purpose of the informed consent. It is not meant to preclude you from recovering for injuries and damages which are caused by the negligence of the physicians or staff, as clearly we expect our healthcare providers to provide us with reasonably prudent care.
PROVING MEDICAL NEGLIGENCE: proving a medical malpractice claim is difficult and requires experience and knowledge about the medical standard of care for the particular field of treatment, the mechanism, and causation of the injury and an ability to keenly assess whether your injury resulted from negligence or was merely a poor outcome. First, one should consult with a competent and experienced medical malpractice attorney, who has extensive experience in handling not just personal injury claims, but specific knowledge and understanding of the handling of medical negligence claims.
PROCEDURAL REQUIREMENT: In India, medical negligence is covered by the Consumer Protection Act. In certain cases, medical negligence could also be of a criminal nature. The victim must file a case with the Consumer Forum/Commission of appropriate jurisdiction in order to initiate the claim. Fortunately, the Consumer Forums are pro-consumers and hence, even in cases like medical negligence which are fairly difficult to prove, relief may be granted based on the merits of the case.