First of all i am really sorry that you had to suffer because of someone’s negligience and in experience. I hope that you get well soon. Now i shall train my lens on the larger problem at stake, How can one file medical negligience case in India?

First of all the supreme court’s directive in case of medical treatment are the following:

Now , if you suspect medical negligience , then the follwing steps are required to be taken:

Hope this helps, and get well soon my friend.

Medical Negligence is basically a failure on the part of the hospital or the doctor to exercise due care to the patient. You can always take help of an expert lawyer to file a medical negligence case.

The 3 main ingredients of medical negligence are-

· The hospital or the doctor owes a duty of care to the patient.

· The hospital or the doctor has neglected this duty of care.

· The patient has suffered an injury due to this neglect.

Easiest way to file a medical negligence case

1. First, you need to file a complaint with thePolice and also with the state medical council.
2. However, if the complaint is only filed with the police, they can send the copy of the report to the State Medical Council themselves.
3. Now, if and when the State Medical Council finds the case relevant then, they will forward the report to the appropriate courts under the relevant required sections namely Sections- 52, 80, 81, 83, 88, 90, 91, 92, 304-A, 337 and 338.
4. Also, if the medical negligence case is criminal in nature then, it becomes the case against the state, Thus, State versus the particular hospital or the doctor.
5. Now, if the council finds the crime committed by the doctor or the hospital as grave and serious resulting in creating danger to the life of the patient then, the medical council can initiate action against the doctor by suspending his license for an appropriate time period, until the case is over.
6. Later, if the doctor or the hospital is found guilty then, they might be awarded imprisonment which will be decided on the basis of the gravity of the negligence committed on their part.
7. However, if the patient is not satisfied with the decision of the council, he or she can re-appeal to the Medical Council of India.
8. Besides this, if the complainant is seeking monetary compensation then he can try to seek the help of the Consumer Courts . However, it should be noted that the consumer courts only give compensation and do not have the right to punish the doctor or the hospital.
9. Now, if the complainant is not happy or satisfied with the decision of the consumer court, he can then appeal to the National Consumer Dispute Redressal (NCDRC) forum. They can also appeal to the Supreme Court eventually.

You can file a consumer case in a Consumer Court

Who can file a complaint in a Consumer Court?

A consumer or any recognized consumer association, i.e., voluntary consumer association registered under the Companies Act, 1956 or any other law for the time being in force, whether the consumer is a member of such association or not, or the central or state government.

Who is a consumer?

A consumer is a person who hires or avails of any services for a consideration that has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any beneficiary of such services other than the person hires or avails of the services for consideration paid or promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person. This definition is wide enough to include a patient who merely promises to pay.

What is a complaint?

A complaint is an allegation in writing made by a Complainant, i.e., a consumer that he or she has suffered loss or damage as a result of any deficiency of service.

What is deficiency of service?

Deficiency of service means any fault, imperfection, shortcoming, or inadequacy in the quality, nature, or manner of performance that is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

Where is a complaint filed?

A complaint can be filed in

1) the District Forum if the value of services and compensation claimed is less than 20 lakh rupees,

2) before the State Commission, if the value of the goods or services and the compensation claimed does not exceed more than 1 crore rupees, or

3) in the National Commission, if the value of the goods or services and the compensation exceeds more than 1 crore rupees.

What is the cost involved in filing a complaint?

There is a minimal fee for filing a complaint before the district consumer redressal forums.

Is there any provision for appeal?

An appeal against the decision of the District Forum can be filed before the State Commission. An appeal will then go from the State Commission to the 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 in all cases.

What are the powers of the consumer redressal forums?

The forums have a variety of powers. They are

1) the summoning and enforcing of the attendance of any defendant or witness and examining the witness under oath,

2) the discovery and production of any document or other material object producible as evidence,

3) the reception of evidence on affidavits,

4) the summoning of any expert evidence or testimony,

5) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source,

6) issuing of any commission for the examination of any witness, and

7) any other matter which may be prescribed.

How does adjudication of liability take place?

The process before the competent forum will be set in motion in the following manner. 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. Thereafter, subsequent to proper scrutiny, the forum would ask for either filing of an affidavit or production of evidence in the form of interrogatories, expert evidence, medical literature, and judicial decisions.

MEDICAL NEGLIGENCE - DEFINITIONAL ASPECTS

Negligence is simply the failure to exercise due care. The three ingredients of negligence are as follows:

The defendant owes a duty of care to the plaintiff.

The defendant has breached this duty of care.

The plaintiff has suffered an injury due to this breach.

Medical negligence is no different. It is only that in a medical negligence case, most often, the doctor is the defendant.

When does a duty arise?

It is well known that a doctor owes a duty of care to his patient. This duty can either be a contractual duty or a duty arising out of tort law. In some cases, however, though a doctor-patient relationship is not established, the courts have imposed a duty upon the doctor. In the words of the Supreme Court “every doctor, at the governmental hospital or elsewhere, has a professional obligation to extend his services with due expertise for protecting life” (Parmanand Kataria vs. Union of India). These cases are however, clearly restricted to situations where there is danger to the life of the person. Impliedly, therefore, in other circumstances the doctor does not owe a duty.

What is the duty owed?

The duty owed by a doctor towards his patient, in the words of the Supreme Court is to “bring to his task a reasonable degree of skill and knowledge” and to exercise “a reasonable degree of care” (Laxman vs. Trimback). The doctor, in other words, does not have to adhere to the highest or sink to the lowest degree of care and competence in the light of the circumstance. A doctor, therefore, does not have to ensure that every patient who comes to him is cured. He has to only ensure that he confers a reasonable degree of care and competence.

Reasonable degree of care

Reasonable degree of care and skill means that the degree of care and competence that an “ordinary competent member of the profession who professes to have those skills would exercise in the circumstance in question.” At this stage, it may be necessary to note the distinction between the standard of care and the degree of care. The standard of care is a constant and remains the same in all cases. It is the requirement that the conduct of the doctor be reasonable and need not necessarily conform to the highest degree of care or the lowest degree of care possible. The degree of care is a variable and depends on the circumstance. It is used to refer to what actually amounts to reasonableness in a given situation.

Thus, though the same standard of care is expected from a generalist and a specialist, the degree of care would be different. In other words, both are expected to take reasonable care but what amounts to reasonable care with regard to the specialist differs from what amount of reasonable care is standard for the generalist. In fact, the law expects the specialist to exercise the ordinary skill of this speciality and not of any ordinary doctor. Though the courts have accepted the need to impose a higher degree of duty on a specialist, they have refused to lower it in the case of a novice.

Another question that arises is with regard to the knowledge that is expected from a doctor. Should it include the latest developments in the field, hence require constant updating or is it enough to follow what has been traditionally followed? It has been recognized by the courts that what amounts to reasonableness changes with time. The standard, as stated clearly herein before requires that the doctor possess reasonable knowledge. Hence, we can conclude that a doctor has to constantly update his knowledge to meet the standard expected of him. Furthermore, since only reasonable knowledge is required, it may not be necessary for him to be aware of all the developments that have taken place.

We have, until now, examined the duty of a doctor in so far as treating a patient is concerned or in diagnosing the ailment. Doctors are, however, imposed with a duty to take the consent of a person/patient before performing acts like surgical operations and in some cases treatment as well. To summarize, any act that requires contact with the patient has to be consented by the patient. A duty of care is imposed on the doctors in taking the patient's consent. Naturally, a question arises as to what is this duty of care. As per the judicial pronouncements, this duty is to disclose all such information as would be relevant or necessary for the patient to make a decision. Therefore, the duty does not extend to disclosing all possible information in this regard. Furthermore, this duty does not extend to warning a patient of all the normal attendant risks of an operation. The standard of care required of a doctor while obtaining consent is again that of a reasonable doctor, as in other cases.

When does the liability arise?

The liability of a doctor arises not when the patient has suffered any injury, but when the injury has resulted due to the conduct of the doctor, which has fallen below that of reasonable care. In other words, the doctor is not liable for every injury suffered by a patient. He is liable for only those that are a consequence of a breach of his duty. Hence, once the existence of a duty has been established, the plaintiff must still prove the breach of duty and the causation. In case there is no breach or the breach did not cause the damage, the doctor will not be liable. In order to show the breach of duty, the burden on the plaintiff would be to first show what is considered as reasonable under those circumstances and then that the conduct of the doctor was below this degree. It must be noted that it is not sufficient to prove a breach, to merely show that there exists a body of opinion which goes against the practice/conduct of the doctor.

With regard to causation, the court has held that it must be shown that of all the possible reasons for the injury, the breach of duty of the doctor was the most probable cause. It is not sufficient to show that the breach of duty is merely one of the probable causes. Hence, if the possible causes of an injury are the negligence of a third party, an accident, or a breach of duty care of the doctor, then it must be established that the breach of duty of care of the doctor was the most probable cause of the injury to discharge the burden of proof on the plaintiff.

Normally, the liability arises only when the plaintiff is able to discharge the burden on him of proving negligence. However, in some cases like a swab left over the abdomen of a patient or the leg amputated instead of being put in a cast to treat the fracture, the principle of ‘res ipsa loquitur’ (meaning thereby ‘the thing speaks for itself’) might come into play. The following are the necessary conditions of this principle.

Complete control rests with the doctor.

It is the general experience of mankind that the accident in question does not happen without negligence. This principle is often misunderstood as a rule of evidence, which it is not. It is a principle in the law of torts. When this principle is applied, the burden is on the doctor/defendant to explain how the incident could have occurred without negligence. In the absence of any such explanation, liability of the doctor arises.

Normally, a doctor is held liable for only his acts (other than cases of vicarious liability). However, in some cases, a doctor can be held liable for the acts of another person which injures the patient. The need for such a liability may arise when the person committing the act may not owe a duty of care at all to the patient or that in committing the act he has not breached any duty. A typical example of a case where such a situation may arise is in the case of a surgery. If a junior doctor is involved as part of the team, then his duty, as far as the exercise of the specialist skill is concerned, is to seek the advice or help of a senior doctor. He will have discharged his duty once he does this and will not be liable even if he actually commits the act which causes the injury. In such a case, it is the duty of the senior doctor to have advised him properly. If he did not do so, then he would be the one responsible for the injury caused to the patient, though he did not commit the act.

When there is no liability

A doctor is not necessarily liable in all cases where a patient has suffered an injury. This may either be due to the fact that he has a valid defense or that he has not breached the duty of care. Error of judgment can either be a mere error of judgment or error of judgment due to negligence. Only in the case of the former, it has been recognized by the courts as not being a breach of the duty of care. It can be described as the recognition in law of the human fallibility in all spheres of life. A mere error of judgment occurs when a doctor makes a decision that turns out to be wrong. It is situation in which only in retrospect can we say there was an error. At the time when the decision was made, it did not seem wrong. If, however, due consideration of all the factors was not taken, then it would amount to an error of judgment due to negligence.

Summer of 2007. I took my 23 month old son for a dr. Visit because he had been running a fever of 102-103 for about 3 days. Very fussy, diarrhea and just miserable. The pediatrician did an exam and determined he had a virus. He checked his ears for sign of ear infection but noticed his right ear was full with a lot of wax. The wax was hard and he couldn't see down in the ear canal to determine if he had an ear infection. Nevertheless he decided to clean the ear canal out with an instrument after dropping some ear drops in it to loosen up the wax. After about 5 minutes he processed to lift the wax with this skinny long instrument. During the process he notified me that he accidentally “knicked” the inside of his ear which started a little bleed.

He assured me it was no biggie just a tiny bleed. He sent me home with prescription to manage fever along with other instructions for the virus he diagnosed. The next couple of days fever was still present, hardly drinking and became lethargic. I walked in his bedroom to check on him that evening because he had been sleep for a while. He was laying on his left side. I touched his forehead and and he was burning up. His entire body felt like an oven. I cut the light on in his room to change him and take his temperature since he was burning up and saw his right ear was full of blood. The entire ear canal was full of blood. OMG!

I immediately paged the dr who told me to get him to the nearest e.r immediately. I got a towel and tried to wipe his ear out and i raced him to the e.r which happened to be a trauma hospital. I get there and hes examined by an intern whos Attending was observing. Together they determined he had a virus and that pedatrican punctured his ear drum.

I looked at the Attending dumb founded. While im not a nurse or dr. I know a ear drum that has been perforated would cause a great deal of pain and impair hearing. The attending assured me my son was in no danger and that the ear had stop bleeding and said it takes 5 to 7 days sometimes for viruses to run its course. My son was discharged and sent home. No labs were taken or anything. I was told to alternate between motrin and tylenol.

Day 5 the high fever continued, Ear was no longer bleeding but my son condition worsened. I just could not seem to break the fever. He became more weak, lethargic and by now wouldnt eat and barely took any fluids. I took him back to the same er. While sitting in the waiting room my son's nose started to bleed. The blood was running out so fast like turning on a faucet. I hollered for a nurse who brought us in the back.

The same intern and Attending from the previous visit entered the room. I was told by the attending that sometimes children get nose bleeds from the air being too dry and cold temperature. I could not believe what i was hearing. The Attending also chastised me for bringing my son back for the 2nd time when he told me he had a virus. He said i was wasting my time and his. I told him i felt in my gut something else was going on. I begged him to do a CBC and he refused to do one. I had good insurance and was just floored at the treatment i was getting.

I left the hospital at 3:30 am and took him to a university hospital about 10 miles away. As soon as i got there and told the triage nurse what had been going on and how i was treated at the other hospital the nurse notified one of the e.r doctor who immediately orderd a CBC, they started an IV for fluids (he was severly dehydrated) and started working on his temperature. They administered tylenol and motrin right behind one another.

A hour later my son was resting and starting to cool down. The e.r physician entered the room and stated his CBC results came back. His platelet count was 10,000 (normal platelet count is 140,000 -150,000). The dr. Admitted my son immediately. I was so upset, scared, and overwhelmed. My mother had passed 2 weeks before all of this happened. I was still grieving and just felt so defeated.

My son was hospitalized for almost a week. A lot of test were done. A team of drs in and out the room taking notes, asking questions. They had never had a case as his for his age-Idiopathic thrombocytopenia.

The worse part out of this was that my son had this very strange rash the surfaced on his hands and feet when he was about 5 months old. (Later clarified as petechiae) It was like red little freckles that would spontaneously appear then disappear. This continued for months off and on. His pediatrician told me it was a heat rash. He also had labs done a few times for lead which is routine in babies. What i later discovered upon getting his records from his pediatrician was that his platelet count was flagged for being low. Well under 20, 000. I was so pissed.

When i contacted the pediatrician for an explanation all he could do was apologize for his oversight saying that he was just swamped with patients. Mind you these labs go back to within the first year and half of my son being born. My conclusion was that he never took the time to review the labs or anything. Just signed them and had them filed away.

Fast forward 5 years later i got pregnant with my 2nd son who at 5 months had the same red freckle rashes on his hands and feet. This time i contacted my oldest sons hematologist who told me to bring him in immediatel. He ordered a CBC and his platelet count was 35, 000. My head dropped in dispair at this news. You see the hematologist still could not determine the cause of the platelet abnormality. He referred us to genetic counseling. After some extensive test finally a diagnosis.

Wilkott Aldridge Syndrome was the diagnosis. It is an auto immune disease. No cure. It entails platelet abnormality, compromised immune system, eczema. It is treatable but unfortunately its a rare autoimmune disease where there are very few cases. A genetic mutation. Females are the carriers and boys have the symptoms.

I wrote the president of that hospital where i was denied a CBC for my child a letter. I got a phone call from the president apologizing and he offered to wave the charges. I was advised by many people to sue the pediatrician for negligence as well as the hospital that refused testing at my request. However i decided not too. I think the death of my Beloved mother…adjusting to her no longer being here on top of being a single parent was overwhelming for me and i just didnt have the energy to look into filing a law suit even though i knew i had a case. My child could have bled to death. His red cells were extremely low which is why he became so lethargic and weak. It explains why his ear bled for a while.

Nevertheless im grateful for an amazing hemotologist who has remained my sons dr for over 10 years. He has helped me cope with their condition and taught me so much about this autoimmune disease. My sons are 12 and 7. They have spontaneous bruising and can not engage in any contact sports. They have been hospitalized a few times over the years for bad viruses and very low platlet counts but over rall are doing well.

I know doctors are overworked and overwhelmed and this is something that needs to be addressed. Too many patients are going undiagnosed and sometimes the consequences are fatal. Im blessed this wasn’t the case with my son.

If you conclude medical negligence look into speaking with a firm that specializes in medical malpractice and negligence. They will tell you up front if you have a case. It wont hurt to find out. If i had not had so much happen at the time my son was misdiagnosed and neglected as a patient i would have definitely sued.

Best to you,

Jessica M.

It is not easy to pursue medical negligence cases in India unless the medical negligence is apparent (i.e. instead of operating the right arm, the doctor operated left arm) or you have basic knowledge of law as well as medical science. It is also settled law that the onus to prove medical negligence is heavy upon the complainant and the alleged medical negligence should not be based on presumption and surmise and should be pinpointed.

The aggrieved patient may approach state medical council against doctors only and seek redressal. Medical council cannot award any financial compensation.

If the negligence is on the part of the hospital/ clinical establishment, you may approach the Regulatory Commission and seek monetary compensation. This commission cannot look into complaint against any doctor.

If the allegation is against both doctors and hospital, then one may approach consumer commissions and seek monetary compensation.

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1. There was this seven year old boy who was admitted in a hospital with a fracture on his left hand.
2. He was treated and a plaster was put on his hand. He was asked to come after 15 days for a review.
3. After 15 days when the plaster was removed by the doctor, everyone was aghast to see that the entire hand was deeply infected. Upon examination it was found that at the time of fracture, there was a little wound in the hand which the doctors didn’t notice and put the plaster.
4. His parents took him to another, bigger hospital and the doctors told them that there was no other option but to amputate the hand below elbow. It was a devastating news for the entire family. That boy was taken to a couple of other hospitals for further opinions but the result was the same.
5. That boy’s hand was amputated.
6. His parents filed a case in state consumer commission for medical negligence against the hospital and treating doctors.
7. Case went on for more than three years. But finally it was established in the court that it was the doctors’ negligence which has resulted in the amputation of that boy’s hand.
8. The court severely reprimanded the hospital and imposed a maximum penalty of 50L.
9. In cases of medical negligence, you can file a case in the concerned consumer commission. But remember, the onus will be on you to prove your case with relevant documents and evidence.
10. A frivolous or vague complaint will not be entertained.

To file a negligence claim against a doctor requires you hire an attorney who specializes in medical malpractice. Med Mal is very difficult/complex and almost impossible to win without an attorney. You also need to determine whether or not you have an arbitration agreement as many doctors ask clients to sign one. If you file a lawsuit when you have an arb agreement is going to potentially cause problems including potentially loss of the claim. The “legal action” you are describing will require that you and your attorney prosecute the negligence action for damages. If you want to make a complaint with the State Medical Board, you will need to contact them directly. They usually also investigate civil verdicts if over a certain amount (for example $30,000 in California).

Medical Negligence is a matter of exact investigation on the medical case , it needs to be first analysed if there is any Negligence caused by the Doctor and his subordinates to the patient and if there is any damage to the patient with respect to his health . the damage can be either disability or death of the patient caused by the negligent act of the Doctors in order to analyse the case on the grounds and seek the opinion before coming to the conclusion to file a complaint or seek legal remedies you need to first get the medical case paper the entire copies of the medical records by applying to the hospital for the certified copies of the medical records , the Doctors Notes, Case proceedings in the hospitals , Investigation Reports , Nurses Notes and other documents related to the case .

Then after studying the lawyer who deals with medical negligence cases will come to the conclusion if there is any mistake or error Happened and will take help of concerned specialty by studying that papers in the medical field , if required he can also be assisted in making the case by specialist Doctor to make his case in more precise and strong way. The Lawyer can also take an opinion and affidavit of the specialist Doctor to produce it in the courts . but is not mandatory as there are various supreme Court Judgments which states that the in case of Res Ipsa Lotiquor that is if the case speaks for itself then there is no need for the same . The onus of proving the medical Negligence case is on the complainant that is the patient itself or His keens who are filing the complaint in case of death of the patient .

There ar various criminal and civil Remedies available to file the case or complaint as follows.

A) Criminal Proceedings against the doctor can be initiated under certain Sections of Negligence as 337 , 338 and various others in case of Disability caused to the patient or section 304A of Indian Penal Code in case of Death of the Patient which will be proceeded in the criminal courts as J.M.F.C. in district level and Metropolitan Magistrate Courts in Metro Cities in India .

B) Civil Proceedings can be initiated in the Civil Courts under Law of Torts but are quite cumbersome and time taking in India also the stamp duty is at the higher side to file these case .

C) Consumer proceedings can be initiated against the Doctors and the Hospital as the medical services comes under the preview of the Consumer Laws in India where the Patient or His Keens can make Compensatory claims against the Doctors and the Hospital. The volume of the compensation can be made based on the disability caused or the Demise of the patient where the complainant can ask for monetary compensation from the Doctors and the Hospitals . These proceedings can be initiated in the District consumer Forum Up to Rs 20, 000,00/- ( Rupees Twenty Lakhs ) at the State Consumer Forums from Rs 20,000,00/- to Rs 1,00,000,00. ( Rupees Twenty Lakhs to Rupees One Crore ) and at the National Consumer Forum beyond Rs 1,00,000,00/- ( Rupees One Crore ) And above .

D) Disciplinary remedies against the Doctors and the hospitals are to be initiated at the state Medical councils where if there is negligence on the part of the Doctors or the hospitals the licences of the Doctors and the hospitals can be suspended for a particular time .

In all the above proceedings and actions as legal remedies it should be kept in mind that the case must be strong and must be proved for the negligence against the Doctors and Hospitals or it may also backfire against the patient or the relatives as there had been recent Judgement against the patient for defamation in Pune initiated by one of the reputed Hospital and the Patient is directed to pay cost in Crore . Hence get your case tight and go for any legal action only if there is Negligence .

Quite a Lot
And
99.99 percent of cases are not of negligence, but due to ignorance or greed from the patients side

In case you have doubt,
Please go to all the consumer Forum Website
Go through the cases yourself and decide

At least
Go through the last 100 judgements regarding health and you will find that Most of the cases are fake and frivolous and are filed just because the patient developed complication or died

In India, any complication or death is immediately labelled as medical negligence. The Indian Rules are heavily skewed towards the patient and if a patient goes to court, there is 99 % chance that he will wine

For Example See this Side Effects of prescribed Medicine: Neurologist asked to Pay Rs 90,000 - Medical Dialogues

This is a routine Side effect of Carmabazapine.
Yet this is called as Negligence and the doctor is made to pay fine

There are thousands of cases like this

In case you are still not satisfied, let me give you another example Baby blinded by medical negligence in 1996, SC orders Rs 1.80 cr compensation in 2015 - Times of India

This is a child who needed oxygen.
And Retrolental fibroplasia is a documented side effect of oxygen
But this expected Side effect is being labelled as negligence and doctors are asked to pay Rs 1.8 crores

This is the status of Healthcare in India

For medical negligence and malpractices by doctors and hospitals, an aggrieved party may:

1. Lodge a complaint before medical council - (only against doctors)
2. Lodge complaint before the State Regulatory Commission under Clinical Establishment Act - (only against hospitals)
3. Lodge complaint before Consumer Commissions - (Against both doctors and hospitals)

So choosing the correct forum as mentioned above depends on various factors like the nature of negligence, loss caused, role of doctors, hospitals and associated staff etc. Factual details of the issue is very much essential in order to determine which forum would suit you the best.

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1. When I was a member of consumer court, a case of medical negligence was filed in our court against a hospital and doctor who was an MS, a surgeon.
2. A ten year old boy suffered a fracture in his left hand. The doctor performed a surgery and put a plaster. There was a wound on the other side of hand but the doctor didn’t see it.
3. When plaster was removed after two weeks, because of that unattended wound, severe infection had set in the hand. And the doctors had no option but to amputate the hand below elbow. He was a ten year old boy. It was a tragedy not only for that poor boy but for entire family.
4. After examining all the hospital records and hearing the arguments from both sides, the court reached to the conclusion that it was a classic case of medical negligence. The court levied a penalty of fifty lakh rupees on the hospital.

There are a number of cases of medical negligence filed against hospitals and doctors. However, in my experience 70% of these cases are frivolous and without any concrete evidence.

I can’t venture a guess, because I don’t know what happened to you. But:

Any lawyer who handles medical malpractice cases will give you a free consultation. Based on the evidence you bring them, they will decide if they want to bring the case to court.

Tip: prosecutors don’t agree to a lawsuit unless they’re pretty darn sure they’re going to win.

If you win, the attorney will take their pay out of any monetary award you win. Get the specifics in writing, upfront.

Your job is to make your case to the lawyer. Anything- calendar entries, emails, voicemails, notes that will make your case should be collected and presented to the lawyer.

I have found it helpful to write down your experience. It ensures you don’t leave any vital information out, and you may find other angles to your case that could be exploited either in your favor or against you.

I am not a lawyer. Please don’t take my advice as legal advice. I’m just an older person who, as a small blond woman, has had a few people assume I’m stupid and tried to take advantage of me. My last legal go-round was my mother’s dementia care facility trying to get money from me after she passed away. I let the facility manager’s call go to my voicemail deliberately. Sure enough, I caught her saying she was going to charge me with “elder abuse” if I didn’t write a check for $6k. I downloaded the audio file to my computer and emailed it to my attorney, who walked the 2 blocks over to the manager’s office and told her to not threaten or contact me anymore.

It depends on what you mean by falsely. I'll give you a few examples:

• Let's say that following a surgery, a patient loses sight in her left eye. She accuses her doctor of negligence and even files a lawsuit, but she ultimately loses. This would not be defamatory, both because (1) opinion is not defamatory and (2) there is a litigation privilege to defamation (the fact that your claims brought in good faith do not succeed does not mean that you have to be defamed your opponent).
• Let's say instead that following a surgery, the patient is fine but makes a false claim of being blinded in her left eye. If the only place she makes this claim is in a lawsuit, then the same litigation privilege above would apply. However, the patient could be subject to sanctions if she was found to have filed a frivolous suit, and could be charged with committing perjury, etc. Further, while the act of filing a lawsuit would not be defamatory, if the patient had told others of her fake blindness, such as on a Yelp review or discussion board, that could absolutely be defamation.

Disclaimer:

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Whenever a doctor or any other individual associated with a medical service-providing organization, like hospitals and nursing homes, has carried out a few actions, which have resulted in either serious injury or death of a patient, then it is called medical negligence.

How Does Medical Negligence Happen In India?

Medical negligence can either result in a serious injury for you or someone you know or might be the cause of the death of someone related to you. Medical negligence mostly occurs because of the failure of the doctor to follow standard medical procedures to treat a patient or the doctor performing the wrong treatment.

In other cases, medical negligence can also occur due to a prescription of wrong or faulty medicines or failure of the nurses and other hospital authorities to follow standard operating procedures. You can also lodge a complaint of medical negligence against an entire hospital if you are sure of their malpractices.

Some of the major reasons for medical negligence are:

• A wrong prescription of medicine by the doctor results in the worsening of the condition of the patient, or in some cases, even death.
• Failure of the doctor and other hospital authorities to stick to standard medical procedures.
• Wrong constitution of medicine, or different constitution as compared to claims.
• Rude behavior of the hospital authorities towards a patient, resulting in worsening of the condition of the patient.
• Use of defective products by the hospital or the nursing home
• Fraud claims by the doctor or the hospital authorities.
• Issuing of wrong death certification.
• Corruption at the medical institution involved, and many more.

How To Complaint Against Medical Negligence In India?

The best way to lodge a complaint against medical negligence is to go to the official page of the Indian Medical Council. There you will find a page fully dedicated to the complaint. Apart from that, you have to provide various details about medical negligence to support your claim fully.

Some of the major documents that you need to keep for support include prescriptions, medical records, witness statements, photos and other pieces of evidence, a written explanation of the situation you faced, and many more.

Way Forward…

One of the best ways to gather your documents and file a complaint against medical negligence is to contact a professional advocate near you. A practicing advocate has a lot of experience in dealing with such cases and knows how to fight a case. Lastly, however, you need to have the patience to make the law take its course.

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Okay, let’s meet at another doubt clearance. Till then take care:)

Not that hard, surprisingly. Most lawsuits are filed because the doctor pissed the patient/family off. Most people don’t know what proper medical care is. If their doctor is nice/friendly/ happy, the patient is usually happy.
Remember: (1) Half of all doctors are below average (a Lawyer-friend told me that it was 2/3rds for lawyers) (2) The person graduated last in their medical school class is called “Doctor”.
So someone who is nice/friendly/happy and has the gift of gab can make a problem seem normal.

Most doctors know which ones shouldn’t be practicing, but if you try by yourself to do something about it, you’ll get sued, get a bad reputation, and waste a lot of time and money.
And remember, medicine is a very complication thing, patients are all different, and you can do everything right but it turns out poorly…

Seeing a lawyer can start a lawsuit, BUT lawyers don’t know any more about medicine than I do about law. They have to refer the question to doctors and get opinions as to whether treatment was proper, or not.

That being said, I practiced more than 40 years without a lawsuit being filed against me. And I don’t think it was because I was lucky…

You can sue, if you can find a lawyer to take your case. But none would take it on contingency because they know they would lose, and they would be stuck with paying the costs + no monetary award.
Doctors do not promise to cure. Only to provide good care for your condition. So if they did, they did not commit medical negligence. And ‘good care’ is following standard/best medical practice guidelines.
Death is not malpractice. Only failure to prevent it if a normally competent physician would have been able to do so (allowing for the vagaries of illness and human bodies—that means not everybody or disease reacts in exactly the same way. Most people do well with a gall bladder surgery, but some don’t even if the operation is done the same way each time.) But if you do the surgery in a wrong manner and the patient does badly, that’s medical negligence.

Yes, they can and from time to time it does happen. I’ve never done it and I don’t personally know any doctor who has, but I do know of cases where it has happened.

Doctors (and all other healthcare providers) retain basically the same legal rights as any other citizen and they can sue anyone they want for the same reasons as anyone else. While suing a patient would not be a particularly common scenario and if you did it all the time you might not get a lot of referrals, legally you can do it.

The most common scenario would be non-payment of fees. Generally this would only be as a last resort after other options to negotiate payment had failed. However it can and does happen.

There are, rarely, other reasons why a doctor might sue. One example I’m aware of was a plastic surgeon who operated on a patient. The patient didn’t follow post-operative recommendations or follow up, and had a less than idea outcome as a result. They subsequently went to one of those “current affairs” shows who painted some story about the surgeon being an evil incompetent surgeon who had no idea what he was doing. In doing so they made a number of factually inaccurate statements and misrepresented the surgery and its outcome. The doctor sued for defamation and was successful.

Beyond that could sue for most other things. E.g. if a patient stole from the doctor’s office or something you could sue for compensation.

Step 1: Get a lawyer who specializes in such things.

Step 2: Follow your lawyer’s advice.

If you try to do this without legal counsel, the doctor or hospital will bury you in so much legal paperwork you’ll want to give up, which is exactly what they want you to do.

Best of luck.

1. First and Foremost-write an application to the Medical Superintendent of the hospital and get a copy of your indoor case sheet and all records so that they are not able to manipulate it later. They cant deny as it is your right.
2. Then approach local police and try to file a FIR for medical negligence.
3. Approach your state health department, directorate of medical services, Chief District Medical officer, State Medical Council, Medical Council of India
4. Approach Media, local MLA, Local MP
5. Approach Consumer Court
6. Write/Email to CMO, PMO, Health Minister
7. Follow all the 6 steps above- keep no stone un-turned, In your complaint letter mention that you are involving all these departments so that they will take you seriously.
8. Remember- Its difficult to prove medical negligence but not impossible. Don’t loose your heart and patience. All the best.

By being negligent! Medical negligence or malpractice is defined as failure to meet the standard of care in the profession, sometimes further defined by the region, city or state. To be actionable, this breach of the standards of care or standards of practice must be the proximate cause of some damage to the patient Naturally, doctors are resentful that they can be held accountable for their mistakes, but my own personal opinion is that in our society, physicians are very highly paid for their services, and part of the reason that they are earn so much is that they are entrusted with the health and well-being of their patients, and should be paid very well for bearing that responsibility. Only a small percentage of medical malpractice suits are successful for the patients—-maybe 10% or 15%. Our nation’s state legislatures have erected many obstacles that make it difficult to recover money from doctors, and our courts have largely supported those obstacles. Your question is so vague that I can only guess whether I have answered it or not. I could easily write 10,000 words in response to your question and still miss the mark.

You can lodge complaint of medical negligence against doctors and/ or hospitals before:

1. State Medical Council - Against doctors only
2. Consumer Forums - Against doctors and hospitals
3. Regulatory Commission (under Clinical Establishments Act) - Against hospitals only
4. Civil Court - Against doctors and hospitals
5. Criminal Court - Against doctors and hospitals

Please keep in mind that the onus to prove medical negligence is heavy upon the complainant unlike other negligence, the complainant should pinpoint the negligence and not make vague allegations based on surmise or presumption etc. So before lodging a complaint of medical negligence, you have to do proper homework.

Exact laws vary from place to place, so you’d need to seek professional legal advice. In general, though, the answer is that sometimes this is possible.

For the most part, a complaint made in good faith is legally protected. So if the patient puts in a formal complaint, or files a lawsuit etc, and loses, that in and of itself can’t be used against them, as people have the right to file complaints and the like. It gets a bit more complicated if the patient deliberately files a complaint they know to be false, but in practice that’s really hard to prove.

If the patient makes false statements in public, though, that can sometimes be a different story. I do remember a case where a patient went to the media about their surgeon and the local “current affairs” program ran some story about how they were this evil doctor harming patients etc. The doctor sued and won. There were a few reasons why, including that a lot of what the patient said publicly was false, they’d attributed their bad outcome to poor surgery when in fact they hadn’t followed the doctor’s advice regarding post-operative care and so forth, and basically the entire picture they’d painted was false. Also they’d made these statements on TV where lots of people could see them.

So basically, yes it’s possible, although the threshold is fairly high.

It depends if he was employed, in a partnership or self employed.

If he was an employee and made a mistake, the employer would be vicariously liable for his mistake and they would be the organisation sued.

If the doctor was in a partnership, the partnership would be sued.

If the doctor was self employed, his insurance company who provided professional indemnity insurance would be the organisation to sue.

If he was not employed, not in a partnership or not insured and has no assets in the country, then suing would be pointless from a monetary perspective.

The doctor does not have to be in the country to be sued. This also happens if the doctor is dead, he can still be sued for the above reasons.

Practically all medical malpractice cases depend on whether or not there was gross misconduct on the part of health care professional's. A breach of the medical standard of care is a lawful yardstick on which the health care professional's actions will be measured.

On several occasions, proving medical negligence usually requires the testimony of a medical expert witness who will establish what the appropriate course of treatment would have been under the conditions and then explain how the doctor's conduct cut down that standard.

If a patient has suffered an injury the doctor might not be held liable for negligence. In case of error of judgement by the doctor, he shall not be charged against any such actions. A doctor performing his duty with due care and caution cannot be held liable for negligence.