Category Archive Medical Negligence Law Guide

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 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.

Doctor’s liability in medical negligence cases

Medical malpractice and negligence is a special kind of personal injury case brought against hospitals, Doctors, nurses or other medical professionals. Medical negligence arises from an act or omission by a medical practitioner, which no reasonably competent and careful practitioner would have committed.

Those who suffer from a medical malpractice injury may be able to hold the medical care provider(s) responsible for that injury liable under the special rules that apply to this type of professional negligence.
 

Liability under the Consumer Protection Act

The Supreme Court decision in Indian Medical Association v VP Shantha brought the medical profession within the ambit of a ‘service’ as defined in the Consumer Protection Act, 1986. This transformed the relationship between patients and medical professionals as contractual. Patients who had sustained injuries in the course of treatment could now sue doctors in ‘procedure-free’ consumer protection courts for compensation.

The Consumer Protection Act will not come to the rescue of patients if the service is rendered free of charge, or if they have paid only a nominal registration fee. However, if patients’ charges are waived because of their incapacity to pay, they are considered to be consumers and can sue under the Consumer Protection Act.
 

Liability under tort law

Where the Consumer Protection Act ends, the law of torts takes over and protects the interests of patients. This applies even if medical professionals provide free services.

The onus is on the patient to prove that the doctor was negligent and that the injury was a consequence of the doctor’s negligence. Such cases of negligence may include transfusion of blood of incorrect blood groups, leaving a mop in the patient’s abdomen after operating, unsuccessful sterilisation resulting in the birth of a child etc.
 

Liability under criminal law

 A doctor can be punished under Section 304A of the Indian Penal Code (IPC) for causing death by a rash or negligent act, say in a case where the death of a patient is caused during operation by a doctor not qualified to operate. The standard of negligence required to be proved against a doctor in cases of criminal negligence (especially that under Section 304A of the IPC) should be so high that it can be described as ‘gross negligence’ or ‘recklessness’, not merely lack of necessary care. Criminal liability will not be attracted if the patient dies due to an error in judgment or accident.

A doctor can also be punished for causing hurt or grievous hurt under the IPC. However, Sections 87, 88, 89 and 92 of the IPC provide immunity from criminal prosecutions to doctors who act in good faith and for the patient’s benefit. 

All you need to know about Surrogacy Law in India

Surrogacy is defined as a woman carrying a pregnancy and giving birth to a baby to another woman.  This arrangement can be voluntary and gratuitous, as well as, paid as any commercial transaction according to the agreement between the couple and the woman who agrees to bear the child.

In India, all three types of surrogacy are permitted as per law-

• Voluntarily
• Gratuitous
• Monetary Consideration 

Is Surrogacy legal in India?

Yes, commercial surrogacy has been legal in India since 2002. But it’s still unregulated in our country, although a draft surrogacy bill 2016 is being finalised by the government.

What are the Guidelines laid down by Indian council of Medical Research on Surrogacy?

The Indian Council of Medical Research (ICMR) has set ‘national guidelines’ to regulate surrogacy. It lays down that surrogate mothers need to sign a “contract” with the childless couple. There are no stipulations as to what will happen if this “contract’ is violated.

• Surrogacy arrangement will continue to be governed by a contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear the child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes.  
• A surrogacy arrangement should provide for financial support for the surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child. 
• A surrogacy contract should necessarily take care of life insurance cover for surrogate mother. 
• One of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship. Also, the chances of various kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child, which is resorted to if biological (natural) parents and adoptive parents are different. 
• Legislation itself should recognise a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian. 
• The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only. 
• Right to privacy of donor as well as surrogate mother should be protected. 
• Sex-selective surrogacy should be prohibited. 
• Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only. 

What are the guidelines for foreign nationals?

• The foreign couple should be duly married and the marriage should have sustained at least for two years at the time of commissioning of surrogacy.
• They should enclose a letter from the Embassy of the foreign country in India or the Foreign Ministry of the country with the application stating clearly that:
  • the country recognizes surrogacy and
  • the child/children to be born to the commissioning couple through the Indian surrogate mother will be permitted entry into their country as a biological child/children of the couple commissioning surrogacy.
• The couple should furnish an undertaking that they would take care of the child/children born through surrogacy.
• The treatment should be done only at one of the registered ART Clinics recognized by ICMR.
• The couple should produce a duly notarized agreement between the applicant couple and the prospective Indian surrogate mother.
• The FRRO/FRO concerned may grant exit to the child/children born through commissioning of surrogacy, subject to the following:-
• (a)The OCI/PIO Cardholder had obtained the requisite prior permission from the FRRO/FRO concerned for commissioning surrogacy as mentioned above.
• (b) The OCI/PIO Cardholder is carrying a certificate from the ART clinic concerned regarding the fact that the child/children have been duly taken custody of by the OCI/PIO Cardholder and the liabilities towards the Indian surrogate mother have been fully discharged as per the Agreement.
• (c) A copy of the Birth Certificate (s) of the surrogate child/children, along with photocopies of the passport and OCI/PIO card of the OCI/PIO cardholder, will have to be submitted by the OCI/PIO cardholder to the FRRO/FRO for record.
• (d)The wife of a foreign national or OCI/PIO cardholder (who does not have an OCI/PIO card), who is not involved with the treatment in any way, may not require a specific Medical Visa.

How to claim compensation in medical negligence cases

Remember the last time your doctor medicated your tonsillitis with half a dose of aspirin? Or tried to calm your stomach with a generous dose of PUDIN HARA? Now imagine your doctor messing up your eye and making you blind for the rest of your life. Feeling spooky? Medical negligence happens all the time? and it is real.
 

What do you mean by Medical Negligence?

Medical negligence is the legal cause of action which comes into play if your doctor does not provide you with the suitable healthcare that you deserve. It ranges from small laxities like forgetting the right procedure to bigger issues which can lead to unintended catastrophic outcomes. Withholding the course of treatment from the patient can also be brought under the umbrella of medical negligence. In fact, even forgetting to mention the treatment administered in the discharge reports can amount to negligence. 

The ultimate aim of any legal action pointing to medical negligence is to correct the injury done to you by the medical professional, by securing adequate compensation in lieu of the damage done to you.  
 

Know your rights:

Knowing what the small and often neglected errors are is the area that needs attention. One emerging area is medical implants. Consider the scenario where the procedure of device implantation goes horribly wrong. 

Another area that is not often highlighted is the role of medical device manufacturers. The truth is that very often there are defects in manufacturing of these faulty implants – which the company producing them is aware of but does not reveal to the medical community. They are liable for jeopardizing the safety of thousands of potential patients.Therefore, it is not only the doctors up on whom you could file a criminal case or a civil case for compensation, but also the manufacturers of these defected implants. In the US and Europe, Johnson & Johnson is in the process of being fined millions of dollars for making defective polypropylene implants.

Similarly, cancer is another area where gross deficiencies in treatment often lead to serious and avoidable injuries to patients. A case where doctors misinterpreted cancer a diagnosis reports was also recently considered medical negligence. Understanding this scenario is the key to making your case successful.
 

How to tackle medical Negligence legally:

There are 2 ways of approaching a case of medical negligence. First would be to file a civil case which would make it easier to garner financial compensation from the defaulter(s). The other approach is to file a criminal case in case of gross cases of medical negligence. But the important detail to keep in mind is to approach a lawyer who is comfortable with medical terms and is in the know about the medical procedures undertaken by doctor – or has prior expertise and experience in dealing with complex cases of medical negligence.

Documents required:

The next step towards obtaining relief would be to prepare your case. Before preparing the case, one needs to gather all medical records pertaining to the case at hand. It may include the discharge summary, diagnosis reports and any other records of medical procedures carried out. After getting all these documents in place, go meet a lawyer with the requisite expertise in handling such cases and as mentioned before, has the knowledge about medical terms and procedures.
 

What to finally expect from the case:

The final question one has in mind is what to expect if we present the case in a court of law. The law has equipped us with proper answers to tackle medical negligence. In a recent verdict by the Hon’ble Supreme Court, a government doctor and the hospital were made to pay almost Rs 2 crores to the parents of a small child who went blind due to the gross negligence of the government doctors treating her. The compensation ultimately depends on the severity of the injury and the degree of negligence in each case presented.

Medical Negligence in India

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.”

 

WHAT MUST BE PROVED IN A CASE OF MEDICAL NEGLIGENCE:

There are three essential elements to proving a claim for medical negligence. They are as follows:
 

• Medical negligence (breach of the standard of care)
• Causation
• Harm (injury and damages)

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.