Tessa Quinn
In India, patients are increasingly aware of their rights, and there has been a recent surge in litigation concerning medical negligence, vitiated consent, and breach of confidentiality. Hospitals can be held liable for negligence in several situations, including damage to an organ, incorrect diagnosis, and failure to provide necessary medication or equipment. If a patient believes they have a case for suing a hospital, they can hire a lawyer and take legal action, or they can send a complaint to the Medical Council of India (MCI). If the MCI finds the case serious, it can suspend the doctor's license, and if found guilty, the doctor will be punished according to the facts and circumstances of the case. Patients can also seek monetary compensation through consumer courts, and if still unsatisfied, they can approach the National Consumer Dispute Redressal Commission.
| Characteristics | Values |
|---|---|
| Reasons to sue | Charging extra fees, treating patients carelessly, not providing required medication or equipment, providing false hope, administering wrong medication, providing false information, damage to an organ, wrong treatment, not providing medical records, not adhering to accepted medical norms, not providing an oxygen cylinder, medical negligence, cheating, fraud, deceit, breach of confidentiality |
| Legal basis | Law of torts, law of contracts, criminal law, consumer protection law, constitutional law |
| Legal bodies | Medical Council of India, District Forum, State Commission, National Commission, Supreme Court, National Consumer Dispute Redressal Commission |
| Evidence required | Proof of doctor-patient relationship, proof of non-compliance with standard procedure |
| Other | Hospitals are often held responsible for incompetent care provided by employees like nurses and medical technicians |
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What You'll Learn
Suing for medical negligence
In India, the number of medical negligence cases is increasing, with 52 lakh medical injuries recorded every year, and 98,000 people losing their lives due to medical negligence. Suing for medical negligence in India can be done under the Consumer Protection Act, 1986, or the Indian Penal Code, 1860. Here is a step-by-step guide on how to sue for medical negligence in India:
Step 1: Understanding the Law
It is important to understand the legal avenues available and the specific laws that apply to medical negligence cases. The Consumer Protection Act, 1986 (CPA), is often the preferred choice for initiating action against medical professionals, but other laws can also be used, such as the Indian Medical Council Act, 1956, and the Dentists Act, 1948.
Step 2: Identifying Negligence
Medical negligence arises from an act or omission by a medical practitioner that no reasonably competent and careful medical practitioner would have committed. This includes damage to an organ due to negligence, wrong treatment due to incorrect diagnosis, failure to provide necessary medication or equipment, and providing false information.
Step 3: Filing a Complaint
A complaint can be filed with the Medical Council of India (MCI), a local police station, or a consumer court. The MCI is a statutory body responsible for maintaining high standards of medical education and recognition of medical qualifications in India. The complaint must be filed within two years from the date of the incident.
Step 4: Seeking Compensation
The patient can seek compensation for medical negligence, including medical costs, future medical expenses, loss of wages, and pain and suffering. The multiplier method, which considers the number of years of unemployment and lost income, has been used to calculate compensation, but it is biased towards the wealthy. The Supreme Court has suggested adding other elements to the formula to ensure uniformity and fairness.
Step 5: Legal Representation
It is crucial to hire a trusted medical negligence lawyer to help navigate the legal process and build a strong defence. The lawyer will assist in proving that the medical practitioner failed to follow the Code of Medical Ethics and established medical norms.
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Suing a doctor vs. a hospital
In India, a patient can sue a doctor or a hospital for medical negligence under the law of torts, the law of contracts, criminal law, consumer protection law, and constitutional law.
Suing a doctor
To sue a doctor for medical negligence, a doctor-patient relationship must first be established. Evidence must be provided to prove that the doctor did not comply with the standard procedure set for the profession, and that this breach of duty caused injury or damage to the patient. A criminal complaint may be filed against a doctor alleging rash and negligent acts causing death. Under Section 304A of the Indian Penal Code, a doctor can be punished for causing death by any rash or negligent act, for example, if a patient dies during an operation performed by an unqualified doctor.
Suing a hospital
Hospitals are often held responsible for incompetent care provided by employees such as nurses and medical technicians. They can be sued for negligence if a patient develops a disease, such as HIV, due to careless and negligent behaviour. Hospitals can also be sued for charging extra fees, treating a patient carelessly, not giving the required medication or equipment, providing false hope or expectations, giving the wrong medication, or providing false information.
Medical Negligence Lawyer
To lodge an FIR to initiate criminal action, one must contact a Medical Negligence Lawyer. In the case of alleged criminal negligence, an FIR can only be lodged if a body of experts has held the professional to be criminally negligent.
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Grounds for suing
In India, a hospital can be sued for negligence under the law of torts, the law of contracts, criminal law, consumer protection law, and constitutional law. Here are some grounds for suing a hospital in India:
Medical Negligence
Medical negligence is a common ground for suing hospitals. It occurs when medical professionals deviate from the accepted standards of medication and care, causing injury to a patient. This can include wrong diagnoses, administering the wrong treatment, or failing to comply with the standard procedures set for the profession. In such cases, the patient has the right to take legal action against the hospital and seek compensation.
Breach of Duty
Doctors have a duty of care towards their patients, which includes deciding whether to take on a case, determining the treatment, and administering that treatment. If a doctor fails to perform these duties or breaches the standard of care, it can result in legal action. However, it's important to note that an error in judgment alone does not constitute a breach of duty unless it is due to negligence.
Lack of Informed Consent
In India, consent for a specific surgical procedure does not automatically extend to additional procedures, even if they are deemed beneficial to the patient. If a hospital performs unauthorized procedures or treatments without proper consent, they may be held liable.
Overcharging and Misleading Patients
Hospitals can be sued for overcharging patients and misleading them about treatment costs. This falls under consumer protection laws, and patients can seek redressal through consumer courts.
Transmission of Diseases
Hospitals can be held liable if a patient develops a disease, such as HIV or HBsAg, due to the hospital's negligence and failure to adhere to reasonable standards of care.
It is important to note that specific evidence and proof are required to establish these grounds for suing a hospital, and each case may vary depending on its unique circumstances.
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Evidence required
To prove a medical negligence case in India, you must provide evidence that establishes a doctor-patient relationship. You will need to prove that the doctor did not comply with the standard procedure set for the profession.
You can sue a hospital for negligence if, for example, a patient contracts HIV or HBsAg during their treatment, and it is proven that this was due to the hospital's careless and negligent behaviour. In such a case, the hospital would be held liable for failing to meet the standard of care.
Other examples of negligence include:
- Damage to an organ due to negligence
- Wrong treatment due to an incorrect diagnosis
- Failure to provide a money receipt, prescription, discharge summary, or test reports
- Failure to choose a treatment that is accepted and established in medical norms/research/literature
- Non-availability of an oxygen cylinder
- Charging extra fees for treatment
- Not giving the required medication or equipment
- Providing false hope or expectations
- Giving the wrong medication or injections
- Providing wrong or false information regarding the disease or medical problem
In all these cases, you will need to provide evidence that proves the hospital's negligence. This can include medical records, test results, prescriptions, discharge summaries, and any other relevant documents or information.
It is important to note that the time it takes for the verdict of a case to arrive depends on the nature of the case, so be prepared for a potentially lengthy process.
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Compensation and insurance
In India, a patient can sue a hospital for medical negligence under the Law of Torts, the Law of Contracts, Criminal Law, Consumer Protection Law, and Constitutional Law. The Consumer Protection Act, 1986, covers services rendered to a patient by a medical practitioner, including consultation, diagnosis, and treatment.
To initiate a claim, a written complaint must be filed with the Medical Superintendent (M.S.) of the concerned hospital, with a copy to the Chief Medical Officer (CMO)/Civil Surgeon of the area. If this does not yield a satisfactory response, the next step is to send a written complaint to the State Medical Council (SMC). If the SMC's response is also unsatisfactory, the complaint can be escalated to the Medical Council of India (MCI). The MCI is a statutory body responsible for maintaining high standards of medical education and recognition of medical qualifications in India.
If the primary motivation behind filing a complaint is to seek monetary compensation, it is advisable to file the complaint in a consumer court. Consumer courts can provide compensation and suspend the doctor's license in rare cases of extreme negligence. However, they cannot punish the guilty. If the complainant is not satisfied with the outcome, they can approach the National Consumer Dispute Redressal Commission.
The amount of compensation awarded varies from case to case and can include past and future medical expenses, loss of wages, and pain and suffering. In one notable case, Jasbir Kaur v. State of Punjab, a hospital was found negligent for failing to prevent a newborn child from sustaining injuries, and the court awarded compensation of Rs. 1 lakh.
It is important to understand the limits of any indemnity insurance policy held by the hospital or medical practitioner. The coverage and features of the insurance policy will depend on the amount of insurance underwritten, and it is essential to consider any applicable limits, such as the Any One Accident (AOA) and Any One Year (AOY) limits.
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Frequently asked questions
Yes, you can sue a hospital in India for negligence under the law of torts, the law of contracts, criminal law, consumer protection law, and constitutional law.
Hospitals can be charged with negligence for reasons including: charging extra fees for treatment, treating patients carelessly, not providing the necessary medication or equipment, giving false hope or expectations, and providing incorrect information about a disease or medical problem.
If you have experienced extreme loss or endangerment to yourself or a loved one, you can hire a lawyer to sue a hospital for negligence. You should then send a complaint to the Medical Council of India (MCI), either by mail or by filling out the required form on their website.
To prove medical negligence, you must provide evidence of a doctor-patient relationship and prove that the doctor or hospital did not comply with the standard procedure.
If a hospital is found guilty of negligence, there will be a judicial order. Some judgments are published publicly, which can gravely affect the credibility of the hospital and its doctors.
