 "Image via shutterstock.com")
In a recent case that went before the National Consumer Disputes Redressal Commission, radiologists at an Indore-based hospital performed ultra sonography twice on a pregnant woman but failed to detect deformities and underdevelopment in the foetus. The woman could not undergo treatment for the proper development of the foetus, nor could she exercise the option of termination of pregnancy. For these acts of negligence, the Commission directed the hospital and the doctors to pay the complainants a compensation of Rs 15 lakh.
Stories such as these, of doctors failing to discharge their duties according to acceptable standards of professional conduct, are legion. With growing awareness and easy access to consumer courts, more and more patients are hauling these errant professionals before courts of law.
Proving negligence is difficult
Before you file a case against a doctor or a hospital, it is imperative that your lawyer or you do the 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 negligence. "Medical negligence can only be said to have happened if the doctor doesn't follow standard operating procedures (SOPs) laid down by the medical profession for various treatments," says M S Kamath, honorary secretary, Consumer Guidance Society of India, who acts as a medico-legal consultant to many victims. To cite a couple of instances of what doesn't amount to negligence, a gall bladder stone is impossible to extract in certain cases because of the way it is lodged. Spinal surgery too, has a considerable failure rate. If the doctor acts according to standard procedure and yet fails, he can't be accused of negligence.
Civil or consumer court
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 simpler. If you decide to go to a consumer court, you need to decide which of the three levels you should approach.
A complaint can be filed in the District Consumer Forum if the value of services rendered by the doctor or hospital and compensation claimed is less than Rs 20 lakh; before the State Commission if it does not exceed Rs 1 crore and the National Commission if the value exceeds Rs 1 crore. "Since the word 'and' is placed between the phrases 'value of service' and 'compensation', it implies the sum of both. However, in reality, since the courts exercise absolute discretion in granting compensation, jurisdiction, that is, which forum has the power to determine the case, is only based on the value of services rendered," says Rimali Batra, senior associate, DSK Legal.
You may also initiate criminal proceedings in a case of severe negligence causing great harm by filing a First Information Report (FIR) against the doctor at the nearest police station. Then, you can seek redress in the appropriate court: district court, high court or Supreme Court.
There is no one law under which you can get all remedies. Says, Batra: "A consumer court can't send a doctor to prison. It can only give you a refund of your costs and additional compensation for the suffering undergone. A person can be sent to prison only if you take criminal action against him. The Supreme Court has time and again confirmed that the law does not debar a person from enforcing civil and criminal rights at the same time."
Was the service paid for?
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, 1986," says Bejon Kumar Misra, founder, Patient Safety and Access Initiative of India Foundation.
However, if the advice is free but the hospital charges for medicines, a consumer complaint can be lodged against it. If free treatment is provided as part of employment benefits, as in CGHS, ESIC and railway hospitals, their services are covered under the Act. Hospitals that have two categories of patients, free as well as paying, are also covered under the Act.
Possible hurdles
Patients and their guardians face an uphill task in trying to bring errant doctors to book. One difficulty they face is that surgical procedures take place behind closed doors and are shrouded in secrecy, giving ample opportunity for practitioners to cover up their acts of negligence.
Medical science is also complicated. So patients and their lawyers have to make an effort to understand the standard operating procedures in a treatment, and where the doctor deviated from these. Usually, contingency procedures are available. Victims need to find if those were adopted. "It is also up to the victim and his lawyer to make the effort to simplify and explain the finer points of a complicated case to the judge, who is also usually not an expert in medical science," says Kamath.
Difficulty also arises because of the unwillingness of doctors to testify against fellow professionals. "In private conversations, doctors might tell you there has been negligence but are extremely reluctant to give a statement in writing against another doctor," says Kamath. Judges often depend on the affidavits of experts in deciding a case.
Steps you should take
To effectively fight a case of medical negligence, it is imperative to maintain proper records. Says Arun Saxena, president, International Consumer Rights Protection Council. "Patients should insist on written reports and written schedule of treatment at the time of treatment." Batra too, emphasises this point. "Even in a long-drawn ailment, wherein you consult multiple doctors, keep the entire trail of paperwork intact," she says. Any time you sign a form, keep a copy of it. She adds, "When people go to a doctor they don't think that is it is going to lead to a mishap. It is only when something goes wrong that they run backward and prepare the paperwork. Remember that there is immense information asymmetry and the doctor always has more information to be able to prove his case than you do. So, having your paperwork in place is very important," she says.
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 the individual. While this is rare, it does happen.
If this doesn't work, get an advocate who understands your case properly and initiate legal action at the earliest.
WARNING SIGNALS
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A doctor should announce his fees before rendering service and not after the operation or treatment is underway
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If the doctor is recommending too many tests, it is time to take advice from another professional to see whether the line of treatment is correct
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Soliciting of patients directly or indirectly by a physician, a group of physicians, or institutions is unethical
- A medical professional should not receive gifts, travel facilities, hospitality, cash or monetary grants from the pharmaceutical industry
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"Patients should maintain a record of all the paperwork. Since you don't have access to all the documents and hospital records, it becomes a hurdle in fighting cases of negligence effectively"
Bejon Kumar Misra Founder, Patient Safety and Access Initiative of India Foundation |
Rimali Batra
Senior associate, DSK Legal
Senior associate, DSK Legal
