Medical Negligence

How To Sue Doctor For Medical Negligence?

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We all accept the Medical profession is a Noble profession.Doctors are highly respected in our society.Every Doctor on the convocation ceremony takes an oath to treat his patients with the best of his ability and judgement. However, Doctors are imperfect humans too. They do commit mistakes ,or take wrong decisions and that’s when they can be held liable for Medical Negligence under Civil or Criminal Law.

What is Medical Negligence?

  1. In simple words,Every Doctor has a duty to take utmost care while treating his patient.
  2. When this duty is breached,
  3. Leading to damage to the patient either physical or mental ,then, this is said to be Medical Negligence on the part of the Doctor. It is also known as Medical Malpractice.

To verify breach, the principal of Res Ipsa Liqutor is applied. It means that the “Things speak for itself” For example in AchutRao Haribhau v/s State of Maharashtra , the doctors of a government hospital left mop inside the stomach of the patient during a sterilization operation leading to her death. Negligence of the doctors was speaking for itself.Therefore they were held liable and compensation was granted to the family of the deceased.

How To Determine Medical Negligence? (Bolam’s Test/Bolam’s Case law)

In most of the cases doctors render due deligence in the treatment of their patients. But, sometimes the outcome may not be positive. Consequently, patients or relatives hold Doctors or Hospitals liable on the grounds of Medical Negligence. In the Court of Law it becomes very difficult to ascertain whether the Doctor or the Hospital is guilty of Negligence or no .

Bolam’s Test is the rule accepted and applied by Indian Law System too to ascertain the Doctor’s liability. According to this test if the Doctor has followed a standard medical procedure in treating the patient like any other reasonable doctor would have followed ,then, the Doctor shall not be held liable for Medical Negligence. To understand Bolam’s Test better let’s understand the case law of Bolam

Bolam v/s Friern Hospital Management Committe (1957) 1 WLR 582

Bolam was a patient of Mental depression.He was being treated in Friern hospital where doctors suggested him for a shock therapy. He agreed for it and was given the therapy but without any anesthesia or muscle relaxant. He was not even restrained during the procedure( interval time given between different sessions of the therapy was not enough.) As a result, he suffered fracture of the hip.

Bolam moved to the court and claimed that the doctors have been negligent in his treatment for not giving him the muscle relaxant, anesthesia, not restraining him during the therapy and also did not inform him about the risk involved. In 1957, Bolam’s case was the first of its kind.First time in the history of any Judiciary the liability of Doctor’s had to be decided.Because executive and judicial personnels dont have much knowlege about medical procedures and terminologies, A team of medical experts were told to study the case.

After studying the case, the team of experts were divided in two. One division favoured the Doctors of Friern hospital saying that giving anesthesia and muscle relaxant could have been more dangerous.They held that the doctors acted with the best of their Judgement and followed the standard procedure.Finally the case was dismissed and Bolam did not get any compensation.

Liability for Negligence as per Bolam’s Test

  1. If the Doctor’s has followed the standard medical procedure with reasonable care in treating the Patient , he cannot be held liable for Negligence.
  2. The final authority lies with the Medical experts to decide whether standard procedure was followed or not.That the Doctor has been Negligent or not.

Liability for Negligence as per Supreme Court and IPC 1860

  • Supreme Court under Various cases has stated, that a Doctor can be held liable for Negligence if he did not follow a standard procedure of treatment or did not take reasonable care in treating the patient resulting in damage ,then, such Doctor or team of Doctor’s can be held liable for Negligence.
  • The Doctor can be held liable if he was not qualified or skilled enough to undertake the treatment of a patient and thus resulted in damage to him.
  • As per section 88 of IPC, If the Doctor after taking the consent of the patient follows a standard medical procedure and also takes reasonable care in the treatment, but the outcome is not good, then also,the Doctor shall not be held liable.
  • According to Section 92 of IPC, if the Doctor was not able to take the consent of the patient or his relatives before the treatment ,but acted in good faith in treating the patient following standard procedure and reasonablecare,then also he shall not be held liable even if gross injury or death of the patient occurs.

1)Remedies for Medical Negligence under Consumer Protection Act, 2019.

Medical Profession falls within the definition of services according to section 2(42) the above Act. Therefore, patient or the family can move to Consumer Court and claim Compensation if the hospital bills are settled by them. Consumer courts are fast track courts. If you have ample ammount of proof against the medical practitioners ,then, Consumer Court is the right place to approach.

  • If you claim Compensation, Upto 50lacs– District Consumer Forum has to be approached
  • Between 50 lacs to 2Cr– State Consumer Forum.
  • More than 2Cr- National Consumer Forum.
2)Remedies Under Law of Torts
If the bills are not settled or even if the treatment was for free in a government hospital, the aggrieved party can move to Civil Court and claim Damages. claim Damages under law of Torts.
3)Remedies Under Criminal Law.
  • If your Doctor has committed a Gross Negligence resulting into death.And you want your Doctor to get arrested , then get an F.I.R registered in the police station under section 304A of IPC. Offence under section 304A Is punishable with an imprisonment for 2years and fine or both.
  • Cases can be filed under section 336 of the Act for endagering life due to negligence.
  • Under section 337 for causing simple injury due to Negligence and under section 338 for causing Grevious Injury. Case can be registered in Multiple Courts for Medical Negligence. Negligent act leading to death is a cognizable and bailable offence. It is triable by First class Magistrate.
  • You can also file a complaint in the National Medical Council of India or the State Medical Council. The practicing licence of the Doctor may get cancelled if found guilty.
  • A Complaint can also be filed in National Human Rights Commission.And Doctor can be held liable on humanitarian grounds.
Details To Be Provided in a Compensation claim.
  • Names of all the Hospital/Doctors party to the treatment.
  • Details of all the bills paid. Details of Discharge slip.
  • Claim Compensation for all bills
  • And also claim for mental agony and future prospects. (If because of Negligence done by Doctor, an upcoming athlete patient will never be able to run in future. His currier gets spoilt. In such a case, he can claim for money he could have earned in future through sports).

Q1. What is the punishment for medical negligence?A1. Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.”

Q.2 What is the time limit on Medical Negligence claim/Appeal? A.2 The Complaint before the District Commission needs to be filed within the 2 years from the date of dispute. Further, appeal before State Commission to be filed within 45 days from the date of order of District Commission. Further, appeal to the National Commission should be made within 30 days from the date of receipt of the order from the lower forum.

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