Rights and Duties Of Patients & Compensation

Interactive Forum on : 

Rights and Duties of Patients and Doctors

Litigation Advisory

Consulting, Drafting Or Prosecuting Matters Related To Medical Malpractice Under The Consumer Protection Act, 1986

Commencement of legal proceedings by filing complaint case

Ø  Recording of evidence – oral, written, affidavits, standard texts

Ø  Trial and cross examination of witnesses

Ø  Facilitating expert opinion

Ø  Points of reference to Medical Board appointed by court

Ø  Final Arguments with case law support, if any

Disciplinary Proceedings Before  The State Medical Councils Or Medical Council of India Etc.,Under The IMC Act Or IMC Ethics Regulations, 2002,

Online Drafting of Complaints For Individuals

Consumer Activists Attorneys or Law Firms Supporting Patient Interest and Cause

OVERSEAS CLIENTS / QUERIES FROM OUTSIDE INDIA MAY PLEASE BE EMAILED TO:   corplexischambers@gmail.com

GENERAL PRINCIPLES:

1. Law requires a practitioner to practice with a minimum acceptable standard of professional skill, neither very high degree, nor very low, subject to specialists being exceptions. Therefore one should understand that medicine is an inexact science. What is to be seen that if the treatment that is under challenge could have been given in the similar manner by any other person,  one cannot be held to be negligent.
2. Law also requires updating in accordance with the current practices and sophistication of infrastructure, paramedical and sub-staff, hygiene and sterility. It means while rendering medical services medical men should keep themselves updated and not use outdated or prohibited methods
3. Fees charged by doctors is not subjected to domain of courts, since unregulated. Every one paying fees/money may be a consumer, but no court can judicially dictate a doctor to charge for his services at a particular rate, that cannot be disputed.
4. Orders of Consumer Forums have the force of decrees passed by Civil Courts and can be similarly executed by attachment of property or arrest.
5.  The general law requires a patient to prove his case, i.e. the onus is on the patient, and not on the doctor. It means the complainant has to show to the court that the management given by the doctor was not acceptable to the medical world. To show this he must examine at least one another doctor/expert who must satisfy the court how the doctor accused of negligence was wrong or errant.
6.  Only in exceptional cases of prima facie negligence (res ipsa loquitor) the onus shifts on the doctor and he has to come out of the circle of obvious guilt. Certain examples can be amputation of wrong limb, injecting in the wrong mode, administering strong drugs without testing dose, mishandling of pregnancy cases, leaving surgical waste or instruments inside human body after an operation, entirely ignoring the clinical symptoms.
7. Consumer Forums normally do not have, in their constitution, Judges or Members medically qualified. The consumer justice delivery system is based on summary trial, evidence is normally recorded in the shape of affidavits and in some cases, deponents are allowed to be cross-examined.

8. The mere fact that a patient did not get expected relief need not be a case of negligence. Medicine is called an inexact science. It is well understood that all the doctors have primarily the benefit and recovery of the patient in their mind. Yet, in all cases positive results may not be achieved. That in itself is not a conclusion of negligence. Human body is the biggest mystery on earth. Every person reacts to the pathology of a disease in a special manner,  similarly medicines may have different effect on different patients. At times the stage of diagnosis itself is so belated that the medical science cannot offer any therapeutic relief but can give only palliative solutions, i.e. minimize the agony and suffering while inching towards an inevitable end, as in terminally ill cases. Sometimes, the patient himself is so impatient that he does not continue under the custody of one establishment and rather abandons treatment in haste. Thus having `Left Against Medical Advice’ (LAMA), thereafter, under normal conditions he cannot shift the blame. Similarly, after discharge, some patients or attendants are so reckless that they do not take the follow up advise seriously and end up in much deeper and avoidable complications. Such contributory negligence also acts as a good defense to meet an action for malpractice claim.

9. Standard Texts on a subject are acceptable as evidence. Universally accepted practices are highlighted in authorities, by the well known masters in the field. These books not only provide facts about the pathology i.e. the nature of the disease, the prognosis i.e. possible path of recovery, the management i.e. the variety of treatment options available, the morbidity i.e. extent of damage involved, the mortality i.e. whether the results are fatal,  but also the risks involved, known complications, contraindications, and a considerable level of logistic support of trends or projections connected with the previous case histories. Diagrams, graphs, pictures of the affected parts, radiographs etc. make things much more comprehensible.

10. Matters are sometimes resolved by requesting or summoning an expert in the given branch of medicine to explain the entire matrix  of the case in hand. Complete records can also be sent to senior faculties / Boards for their opinion.

11. Limitation under the consumer jurisdiction is 2 years from the date of occurrence. However, a patient can file case when it comes to his knowledge that the complication was caused by an alleged act of negligence, and the limitation would start from that point of knowledge no matter the act or omission was more than 2 years old.

12.  One should not hesitate to seek expert or second opinion in case of doubt. At times, it becomes a vital piece of evidence.

13.  A court never superimposes its legal findings on the medical man. Medical testimony is a precondition for any judgment to follow. Unless a doctor speaks against another, or books explain the negligence, cases are hard to be proved. But the judicial discretion is paramount.

14. Negligence can be individual where a doctor treated a patient, say one on one.

15. Negligence can be collective, i.e. where a team of persons, say, general physicians, radiologists, surgeons, anesthetists, nurses, paramedics, pathological assistants worked together to treat a patient and some delinquency occurred. In such cases, courts try to pin point liability and apportionment of consequential damage is also awarded.

16. Negligence can be contributory, i.e. the patient him/her self was to be blamed, wholly or partly and accordingly the liability can either be extinguished or mitigated, as the case may be.

17. Negligence can be vicarious and several meaning thereby principals are also liable for the acts of their agents. Hospitals and Nursing Homes are, thus, parties to litigation involving their doctors.

18. Quantum of compensation is determined as per settled statutory and judicial principles.

19. There is provision for collective or individual insurance to indemnify claims arising out of professional negligence. Doctors and hospitals normally  get themselves insured with an insurance company under the policies, like third party losses, and claims are then settled by the insurance company.

20. No-fault liability concept is yet to be launched and accepted as part of indemnity.