Suing the doctor for malpractice? Proving medical negligence is difficult

A case gone bad doesn't always imply medical negligence, and if the doctor acts as per standard procedure and yet fails, he can't be hauled up; he also enjoys strong support from his fraternity

On June 10, a patient passed away in Kolkata's NRS Medical College and Hospital. The family of the deceased clashed with the junior doctors on duty, alleging that the ailing man died due to medical negligence.

Violence against doctors is legally and morally not right as they don't deliberately harm their patients. But there have been cases galore in which patients have suffered and even died due to doctor's negligence. In most cases, it is not possible to prove that the doctor was at fault. "Unless it's outright negligence, which is an open-and-shut case, holding doctors responsible for negligence is usually difficult as their fraternity strongly supports them," says Shirish Deshpande, chairman of the Mumbai Grahak Panchayat.

But with growing awareness and easy access to consumer courts, more and more patients are hauling errant medical practitioners to court.

Understand the definition of negligence

Consumer activists say that courts define negligence when the doctor or the hospital does not act with a reasonable degree of care and skill. In cases of medical negligence, courts look at whether, under the given circumstances, any other doctor of ordinary prudence would have acted in the same way or not.

Before you file a case against a doctor or a hospital, it is imperative that you and your lawyer do the necessary research and find out if yours is indeed a case of negligence. Every medical procedure carries certain inherent risks. Something going wrong doesn't automatically imply medical negligence. It can only be said to have happened if the doctor doesn't follow standard operating procedures (SOPs) laid down by the profession for various treatments. But if he acts according to standard procedure and yet fails, he can't be hauled up.

Medical fraternity back doctors

Patients and their guardians face an uphill task trying to bring errant doctors to book. One difficulty they face is that surgical procedures take place behind closed doors, giving ample opportunity for practitioners to cover up acts of negligence.

Medical science is also complicated. Patients and their lawyers must make an effort to understand the standard operating procedures in treatment, and where the doctor deviated from them. Usually, contingency procedures are available. Victims need to find if they were adopted. It is also up to the victim and his lawyer to try and simplify and explain the finer points of a complicated case to the judge, who is also usually not an expert in medical science.

Difficulty also arises because of the unwillingness of doctors to testify against fellow professionals. "Many doctors tell us there is negligence when we consult them but are extremely reluctant to give a statement in writing against another doctor," says Deshpande. Judges often depend on the affidavits of experts in deciding a case.

Always keep a copy of records 

To effectively fight a case of medical negligence, it is imperative to maintain proper records. "Patients should insist on written reports and a written schedule of treatment. Even in a long-drawn ailment, wherein you consult multiple doctors, keep the entire trail of paperwork intact," says Jehangir Gai, an advocate and consumer activist. By law, doctors and hospitals mandatorily need to provide all records to patients or his family within 72 hours. Gai suggests that the patient's family should request for certified records every three days. It will ensure that in case of any negligence, the family has the original records, and the doctor or hospital doesn't get a chance to manipulate the papers later.

Most hospitals, especially the big ones, have mediation centres. You can voice your grievances there. If the authorities feel there has been a case of negligence, they might compensate you. If this doesn't work, get an advocate who understands your case properly and initiate legal action at the earliest. You can also approach consumer organisations that have medical practitioners working with them. 

Consumer courts are a better option

Once you are convinced there has indeed been a case of negligence, you need to approach the right forum. The mishap that has happened, or the action that you want to take, decides which court you should go to.

Suppose a doctor has misrepresented his professional degree. He may, for instance, claim to be a child expert but is not. In such a case, you should file a complaint before the Medical Council of India (MCI) demanding the doctor or the hospital employing him be blacklisted. If you have suffered monetary damage and want to claim compensation, you may go either to a consumer forum or to a civil court -- but not both. According to experts, a consumer court is less expensive and its procedures are more straightforward.

Most consumer activists say family members should avoid filing a first information report (FIR) against a doctor. An FIR should be filed in rare cases, only when there has been gross misconduct by a hospital or a doctor. Otherwise, approaching the police isn't helpful, as there is usually no criminal act when a doctor treats a patient.

Got free treatment? You are not a consumer

Another point is whether you paid a fee for the medical service. Hospitals that dispense free service are excluded. The Supreme Court has ruled that someone who has availed of free treatment cannot be called a consumer and hence cannot claim compensation under the Consumer Protection Act.

However, if the advice is free but the hospital charges for medicines, a consumer complaint can be lodged against it. Free treatment provided as part of employment benefits, as in CGHS, ESIC and railway hospitals, is covered under The Consumer Protection Act. Hospitals that have two categories of patients, free as well as paying, are also covered under the Act.