Shield for noble Hands...

Remedies for Medical Negligence

  • CRIMINAL COURT
    • When a FIR (First Information Report) is filed against a doctor for the death of a patient who was under his treatment, under this Indian Penal Code Section 304-A the doctor can be arrested. A doctor charged under this section can obtain bail and if proved guilty, the doctor can be punished with a maximum of two years imprisonment or fine or both. But, if the patient is alive, the doctor is charged under the Indian Penal Code Section 337 and 338.
  • CONSUMER COURT
    • Medicine is a noble profession and practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise reasonable degree of care. Neither thevery highest nor a very low degree of care and competence, judged in the light of theparticular circumstances of each case, is that the law requires.
      • Damage to organ due to negligence.
      • Wrong treatment due to wrong diagnosis.
      • Money receipt or prescription or discharge summery or test reports when not provided.
      • When treatment not chosen as accepted and established in medical norms /as per medical research/available medical literature.
      • Theory of res IPSA loquitur [a thing speaks of itself] - in case any instrument left in the body, a wrong part removed, allopathic treatment given by a homeopathic doctor etc.
      • Govt. Hospital liable if contribution from the employee’s salary deducted OR Payment made by insurance company.
      • Negligent if three steps necessary are not observed by the medical practitioners.
        First - To decide whether he has to take up the case or not:
        Second- If taken up the case, he is to decide what treatment is to be given.
        Third- Whether the treatment given as per the diagnosis made.
      • Hospital can also be negligent ‘it is a case of non- availability of oxygen cylindereither because of the hospital having failed to keep available a gas cylinder or because ofthe gas cylinder being found empty.
    • WHEN DOCTOR CANNOT BE HELD LIABLE
      • If five methods available for treatment, one chosen, not negligent.
      • Doctor not guarantor for healing or curing the disease.
      • Error of judgement differ from wrong diagnosis.
  • MRTP COMISSION
    • Monopolies and Restrictive Trade Practices Act (MRTP), 1969
    • This Act is the precursor of CPA, 1986. Before the advent of CPA, this Act was the only resource to consumers against the unfair trade practices. The commission that looks into the disputes brought under MRTP Act based in New Delhi.
  • CIVIL COURT
    • The aggrieved patients can file a case against the doctor for monetary compensation for which the patient to pay Court fees that depends upon the compensation sought. Probably, due to near acceptance of medical negligence as inevitable by the patients and their relatives or local settlements, not many cases have reached the Apex Court of law in the past.
    • The legal remedies are based on the law of Torts, Section 1-A of the Fatal Accidents
    • Act, 1855 and the Section 357 of Cr. P.C., 1973. But to avail it, an aggrieved patient have to wait for years and spend considerable amount of money on litigations. The civil court cases take care the route of Sub-Court, District Court, High Court and Supreme Court.
  • MEDICAL COUNCIL OF INDIA (MCI)
    • An aggrieved patient can complain to the State Councils about a registered medical practitioner about an alleged wrong committed by him. The Council initiates proper hearing where the concerned doctor is given adequate opportunities to represent his side. If it arrives at the conclusion that the doctor has indeed committed an act, which involves an abuse of professional position that might reasonably by regarded as disgraceful or dishonorable by professional men of good repute and competence, the doctor is either given a warning notice or temporarily or permanently debars him for practicing medicine. The Council does not have any statutory powers to award any compensation to the aggrieved patient or legal heirs.
  • HUMAN RIGHTS COMISSION
    • Complaint may be made to the Commission by the victim or by any other person onhis behalf.
    • Complaint should be in writing, either in English or Hindi or in any other Languageincluded in the eighth schedule of the Constitution. Only one set of complaint needs tobe submitted to the Commission.
    • Complaint may be sent either by Post or Fax or even by email.
    • No fee is chargeable on such complaints.
    • NHRC hears cases of medical negligence, orders compensation, PTI, January 7, 2016
    • Mumbai, Jan 5 (PTI) for the first time, the National Human Rights Commission (NHRC) here today heard around 80 complaints of medical negligence against private and government hospitals and also ordered compensation in some of them.
  • PUBLIC INTEREST LITIGATION IN SUPREME/HIGH COURT
    • An aggrieved patient can directly approach the High Court or the Supreme Court when his/her grievances was not properly redressed. PILs are usually resorted when public health programs are not implemented properly. Some of the landmark judgments on Supreme Court on health are the result of PILs.