Medical negligence

Can a hospital be sued for negligence in India?

Yes, you can generally sue a doctor, hospital or a nursing home for negligence under the law of torts, the law of contracts, criminal law, consumer protection law, and constitutional law. The Act establishes various consumer councils at the national, state, and district levels.

Where can I file a complaint against a doctor?

Lodge your complaint in the Police station or send a filed complaint to the Medical Council of India (MCI).

What are the sections available in IPC  for medical negligence?

Section 304A, IPC reads as,“304A. Causing death by negligence. —Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”

What is defined as a medical negligence?

Negligence is an offense under tort, IPC, Indian Contracts Act, Consumer Protection Act and many more. Medical Negligence basically is the misconduct by a medical practitioner or doctor by not providing enough care resulting in breach of their duties and harming the patients which are their consumers. Following include -

  • Surgical error
  • Misdiagnosis
  • Prescription or medication error
  • Bedsores
  • Failure to order appropriate tests
  • Failure to act on a test result
  • Premature discharge
  • Leaving foreign items in a patient’s body
  •  

The Four D’s of Negligence: A Guide

Your lawyer should help you the 4 elements of malpractice or the 4 D’s of negligence:

  • Duty
  • Dereliction
  • Damages
  • Direct cause

1. when a doctor consents to provide medical assistance to a patient, this “duty” means that the patient can rely on the doctor’s experience to provide the needed care. In a situation where the doctor is unable to provide the expected standard of care, he must refer the patient to a medical professional who can.

2. Deviation from expected standard of care could fall into any of the following:

  • Misdiagnosis or missed/delayed diagnosis
  • Birth injury
  • Surgical error
  • Medication error
  • Post-operative negligence

3. Evidence of damages usually include:

  • Tests
  • Prescription records
  • Medical records
  • Medical bills
  • Testimony of an expert witness
  • Your own testimony

4. No matter how negligent your physician has been, you will be unable to make any medical negligence claims unless you can prove it. 

Is medical negligence a criminal Offence?

To convict, therefore, a doctor, the prosecution must come out with a case of high degree of negligence on the part of the doctor. Mere lack of proper care, precaution and attention or inadvertence might create civil liability but not a criminal one.

How to file a complaint? – A detailed procedure

  • File a complaint with the local police and the concerned state medical council.
  • If the complaint is filed to the police, they may then proceed to forward the complaint to the State Medical council.
  • Incase the council finds enough evidence to take the case seriously, they will send the required reports to the courts.
  • Incase the case has a criminal nature, the case will be handled by the State government and tried in a criminal court.
  • After investigation, if the council finds that the hospital/doctor is at fault and has the power to endanger further lives, it may suspend the doctor’s/hospital’s license until a further enquiry is finished.
  • After a final report is finished, if the doctor or hospital is found to be guilty, a punishment will be decided after taking into account the nature and seriousness of the negligence.
  • Incase the patient is dissatisfied with the efforts of the Council, he or she may appeal to the MCI.
  • If the patient is looking for monetary reimbursement, he or she may approach a consumer court, as they have the power to hand out money.
  • Incase a patient is unhappy with the decision taken by the consumer court, he or she may approach a National Consumer Redressal Forum or may even go to the Supreme Court to seek a trial.

Evidence collection in medical negligence cases

  1. All the medical records pertaining to the case must be collected.
  2. As per the rules laid down by the MCI, every patient must receive a copy of their medical records, within 72 hours of requesting.
  3. With the evidence in hand, it is best if the patient sees another doctor to get a second opinion.
  4. Once the patient is sure that there was negligence from the doctor’s side, he or she may file an official complaint.

Challenges faced by victims

  • Takes enormous amounts of time to prove medical negligence.
  • The entire process is time-consuming and cumbersome. This results in the patient getting demotivated. 
  • The reputation of the doctor or hospital in question becomes very important, and this proves to have undue importance in such cases.
  • Doctors, once they realise, they were negligent, may eliminate evidence making it very difficult for the patient to prove the claim.
  • There aren’t many lawyers who are familiar with how such cases work, and what must be done to ensure victory.
  • Insurance companies reject pleas as the cost of litigation is too high to justify the claim.

Complaint against hospital billing.

Complaining against a private Hospital depends upon the nature of complaint. The nature of complaints can be -

  1. Medical negligence resulting into death of patient.
  2. No releasing /discharging the patient for want of clearing bills.
  3. Withholding dead body against pending bills.
  4. No admission of injured in traffic accident.
  5. Charging unreasonable and excessive fees.
  6. Compelling to buy medicines from a particular Chemist.
  7. Any other irregularity or unethical practices.

The person aggrieved can file complaint with the Police, Medical council of India, Consumer Forum.

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