The article “How to prove Medical Negligence” is written by Ishita Mehta. It describes what all steps he should take in order to prove Medical Negligence case.
This article seeks to outline what are the steps that are required to be taken if any person in India faces medical negligence towards him or her. This includes – various problems individuals face if they are pursuing a medical negligence case, how do people gather up and collect the evidence against medical negligence and where can the victims complain about their grievances regarding the medical negligence.
Steps to Follow under Medical Negligence Case
- To File a Complaint with the State Medical Council
The first necessary step if you are a victim of medical negligence is to file a Complaint against the doctor with the State Medical Council. The victim can file a complaint in the state consumer court also and there can be a criminal suit filed by the patient against the hospital or the doctor himself. But, for the patients filing a lawsuit, it can be a very tedious job and it can lead to one of the costliest routes also.
- If the main aim of the patient is to seek a monetary compensation then, he/she should file a complaint in the consumer court so that, the case can be finished at the earliest possible. But, we should also keep in mind that, if the complaint is against the hospital, it can appeal at the national level which means the case might get stuck for few years.
- The consumer courts investigate the matter in the rarest of the rare medical negligence case and can also suspend the license of the doctor. For instance, there has been a recent medical negligence case relating to the sterilization deaths in Chhattisgarh where, due to the medical negligence of the doctor (which he blames on the drugs which were provided), his license to practice for medicine got canceled, including the drug manufacturing company.
- Going to Patient-Advocate
Another step which can be taken into account under medical negligence case is going to Patient-Advocate. A patient advocate conveys a medical duty which was owed to the patient itself.
- If there is any breach done against the patients, a Patient-Advocate has the duty to tell the patients about the necessary steps that should be taken to resolve the issue.
- The Patient-Advocate will also help the patient to know if he should feel that there should be compensation provided due to the particular medical negligence. Though, one should definitely talk to the doctors and their administration to settle the matter at the earliest possible, especially regarding the complaints related to a minor.
Step by Step Procedure –
❏ First of all, you have to file a complaint with local police and state medical council.
❏ If the complaint is only filed with the police, the police can send the report to the state medical council also.
❏ Now, if the State medical council finds the case relevant then, they will send the reports to the appropriate courts under relevant sections.
❏ Now, if the medical negligence case is criminal in nature then, it becomes the case against state versus the particular hospital or doctor.
❏ Now, if the council finds the crime done by the doctor or hospital is serious and led to the danger of the life of the patient then, the council can initiate action against the doctor by suspending his license for a relevant period of time, until the matter is finished.
❏ And after this, if the doctor or the hospital is proved guilty then, he can get imprisonment which will be decided on the basis of the seriousness of the negligence done on their part.
❏ If the patient is not satisfied with the decision of the council, he or she can again appeal to the Medical council of India.
❏ The complainant- if seeking for monetary compensation- can seek the help from consumer courts (it should be kept in mind that the consumer courts can only give remedy as compensation and it does not have the right to punish the doctor or the hospital).
❏ Now, if the complainant is not happy or satisfied with the decision of the consumer court, he can again appeal to the National consumer dispute redressal forum. They can also go to the Supreme Court further.
The next question is how do someone get all the evidence related to the medical negligence case?
Collection Of Evidence Related To Medical Negligence
The first and the foremost step is to gather all the medical records. Under 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.
Now, first the patients need to be sure before filing any complaint against the doctor, so, he or she might want to consult another doctor, seeking if the medical negligence is done or not.
Challenges Faced By the Victims Of Medical Negligence
Medical cases in India are very hard to win and therefore, there are a lot of challenges faced by the victims of the medical negligence. These challenges include that how can a complainant prove the doctor’s negligence? Another challenge involved is how to get a qualified lawyer?
- It takes a lot of time for a patient to prove the medical negligence and the whole process if is very tedious which results in de-motivation of the complainant.
- Sometimes, due to the reputation of the doctor or the hospital, there are more chances for them to win the case and the complainant is often stuck with nothing on his side.
- There are also chances that the doctors if themselves find out that they have been negligent, they can remove the evidence which leads to more problems for the complainant. Now, to avoid all this you should go for a lawyer who has a lot of knowledge about the tricky medical business.
- There have been instances where the insurance company themselves rejected the plaintiff’s case. You need to know about the insurance policies limit as well, as most of the time, the insurance company will pay the settlement amount or the compensation. The costing of the litigation process is very high.
Necessary Test To Determine Medical Negligence
The test is called the Custom test. In the customs test, it must be proven that there was regular practice being done and it should be proved that the doctor or the hospital has not done the practice correctly as they were supposed to.
The last thing which should be proved is the method the doctor adopted which was not ethical. Most of the times the burden of proof is on the complainant itself but if there is no proper management done on the part of the doctor then, it goes to the doctor.
How can the Doctor Protect Himself?
- The doctor uses the section 87-93 of the Indian penal code. All these sections convey that, any damages caused by the doctor which leads to serious injuries have already been consented by the patients or their parents who wish for the treatment. This concludes that they cannot be held liable as the consent is already given. This mostly happens in the criminal medical negligence case(s).
- Under the Consumer Protection Act, if the patient does not pay the full amount for the service provided then, he is not said as a consumer as he just paid the nominal charges during the time of the registration.
- At the point when the harm is excessively remote, the harm was not brought by the specialist’s carelessness. Take for example a man is dealing with a specialist who performs cosmetic surgery, however, amid one of the operations the individual gets a scar all over and later the offended party requests remuneration as in view of the scar all over she couldn’t get hitched furthermore, she loses her employment. The court can grant compensation for the scar all over in the event that it was because of the careless demonstration of the specialist but there won’t be compensation given for her personal problems.
- If the respondent can demonstrate in the court that the harm endured by the offended party was the infringement of a qualified right and that no major damage was done to the offended party then, there is a possibility that the court may not exclude the doctor or the hospital authorities to pay the compensation.
Bonus Read: Important cases on medical negligence.
In India, practically, there are a lot of instances of carelessness which are seen. It is found in the large and, in addition, at the little healing facilities, centers, dispensaries and so forth. Because of this various individuals are suffering in our nation. The most widely recognized kind of medicinal negligence case is found in surgery and child delivery, where, recently due to the doctor’s negligence, the head of the child got independent from his body and so forth.
A lot of arguments have been documented against specialists who carelessly depart their surgical instruments in the body of the patient and so on. Still, various specialists leave their instruments in the stomach of the patient which could be deadly.
Lack of education is another huge element that is not letting our kin to realize what sorts of wrongs are being done in our nation.
Our nation is confronting an awful time today as the specialists additionally are exploiting individuals and are making their administration segment a benefit arranged segment and are changing their vision from giving great well-being to picking up benefits from individuals by requesting that, they experience numerous amount of tests before treating them.
Nature in the doctor’s facilities like the cleanliness and so forth is likewise not kept up by a large portion of the hospital centers. All these matters should be looked into and necessary steps should be taken.There is no excuse of Medical Negligence. Hence, I believe government & the medical fraternity should come up with strict laws to punish the culprit.
How do you think Medical Negligence can be tamed? Drop your views in the comment box below. And Yes, Don’t forget to Share.