How Can You File a Medical Negligence Case?

Medical negligence is not only a sensitive matter but the cases are also subject to several terms and conditions to be filed before the Court. Only under prescribed conditions, the cases of medical negligence can be filed.

What is medical negligence?

Medical negligence is a horror for any person, but it is not that easy to drag the matter to court and seek justice. Medical negligence matters are strictly subjected to certain conditions, as the doctors are usually considered to work for the best benefit of the patient. However, certain situations are in the control of the doctor and medical organization, but it occurs due to their careless attitude. In such a situation, they can be taken to the court.

What constitutes medical negligence?

It is required to know whether an incident can be sued as a matter of medical negligence or not. The following factors will help you understand it better:

An organ is damaged due to the negligence of any hospital staff - whether a doctor or a nurse.

* Carrying the wrong treatment, due to a wrong diagnosis

* Prescriptions, discharges and bill offering wrong advice

* The treatment was not approved by the medical board

* An instrument is left in the body of the patient, post the surgery

* The removal of the wrong body organ or part

* The doctor providing treatment for which he is not licensed to, for example, an Ayurvedic doctor serving allopathic treatment

* Non-availability of basic life-saving equipment, such as oxygen cylinders at the hospital and the nursing home

How can you file the medical negligence case?

For filing a medical negligence case in India, you require to follow the prescribed rules and regulations, which are explained below:

Fact One: The victim has to file the case with the State Medical Council, against the doctor. The victim has to file the complaint himself or through his legal heir or agent if the victim is dead, paralysed or in a vegetative stage. However, it can be filed as a consumer case or a criminal case also, depending on the degree of the damage and situations concerning the incident.

Fact Two: While filing the petition or complaint in the court, attach the documentary evidence such as the prescription, tests ran before surgery or treatment, medical bills, hospital or nursing home bills and discharge documents, tests discovering the medical negligence, medical reports showing the negligence, etc.

Fact Three: If you are looking for monetary compensation, you can proceed to the consumer court. However, in a situation where the money is not a question, rather a severe matter of negligence and harm caused are concerned, you can also file a criminal case against the doctor or the nursing home.

Usually, in the criminal cases here, the state is a party, and to file a criminal case first you have to approach the police and fire an FIR. In case the police refuse to file the FIR or forces you to take it back, you can directly approach the judicial magistrate of the jurisdiction.

Fact Four: In case, the doctor is found guilty, then till the final order is passed, the license to practice of such a doctor shall be withheld, prohibiting him from practicing. On passing the final order, the doctor and the nursing home staff involved shall be penalized with imprisonment and monetary damages.

When you cannot make a doctor liable?

Sections 87-93 of the Indian Penal Code are exceptions of medical negligence case to the doctors as the sections specifically convey that any damages caused by the doctor which leads to serious injuries have already been consented to 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).

Moreover, if the patient is seeking justice under the Consumer Protection Act, it is a condition that the patient must have paid all the fees and no due is pending on the part of the patient.

In the cases where the loss caused to the patient is not directly involved in the treatment, then the patient cannot sue the doctor. For example, an aspiring model met with an accident leading to surgery on the face that left a scar. If she misses a role in a movie due to that scar, she can not blame the doctor for the same.

If the complainant can demonstrate in the court that the harm endured by the doctor or the nursing home staff was an infringement of a qualified right and that no major damage was done to the patient then, there is a possibility that the court may not exclude the doctor or the hospital authorities to pay the compensation.