With the amendment in 'Consumer Protection Act 2019' the pecuniary jurisdiction of the Consumer Courts have been revised. Consequently nearly all medical matters would be at District commissions.
Additionally with a shift towards E-filing and hearing by video conferencing it would be possible for Dr. Sunil Khattri and Associates to help their PAN INDIA clients from Delhi itself.
Providing seamless legal services across India
Q. Is it a case of medical negligence?
An incident is considered medical negligence in the following cases:
If a medical professional fails to render a medical service properly.
If a medical professional fails to serve the duty of acting in the interest of the patient.
If the patient isn’t informed about the underlying risk related to a particular procedure.
Injury or damage, whether temporary or permanent, caused by the negligence of a medical professional.
Q. How do I prove medical negligence?
You can report the incident within 2 years from the date of occurrence. You can file the complaint at MCI (Medical Council of India), a local police station, or the consumer court.
Q. How much compensation can I get in case of medical negligence?
To make sure that there is uniformity in the compensation offered to the victims, the defendants suggest the use of the multiplier method. This method calculates the compensation using a formula. The formula considers the number of years for which the victim would have to stay unemployed because of the damages, and also the income that the victim would have earned in these years.
The formula for this method is-
Annual income x (70-age) + 30% (inflation taken into account) - ⅓ expenses = Compensation amount
The issue with this method is that it is biased towards the wealthy. And in a way excludes the elderly or children by prioritising young people. This is ethically incorrect.
Keeping this in mind, the supreme court suggested adding other elements like medical costs faced by victims during litigation, future medical costs, mental and physical pain, etc. to the formula. The amount of compensation varies from case to case.
Q. What is the timeline it will take to get the verdict of a medical negligence case in consumer court?
The time it takes for the verdict of a case to arrive depends completely on the nature of the case. It can range between X and X.
Q. Can I sue a doctor or hospital for medical negligence?
In cases of medical negligence, you can sue a doctor and the hospital as well. Some people believe that signing consent at the time of paperwork exempts the hospital from any negligence claims, but that is incorrect. You can sue the doctor and nursing home/ hospital under the Law of Contracts, Criminal Law, Constitutional Law, Law of Torts, and Consumer Protection Law.
Q. What evidence do we need for medical negligence?
To prove a medical negligence case, you must have evidence that represented the following elements-
You need proof that establishes that there was a doctor-patient relationship in the first place.
You would need evidence that proves that the doctor did not comply with the standard of procedure that has been set for the profession.
The proof of injury and damage of all kinds that have been caused because of the said medical negligence shall also be present.
Q. What is the timeline for filing the case of medical negligence?
Once you are sure you have been a victim of medical negligence, you can report the incident within 2 years from the date of the incident. You can file the complaint at MCI (Medical Council of India). Alternatively, you can also file a complaint at the consumer court or the local police station.
Q. What are the remedies or quantum of compensation for medical negligence?
To ensure uniformity in the compensation offered to the victims, historically, the defendants asserted the use of the multiplier method. However, this indirectly says that the health and life of children, homemakers, senior citizens, and poor people are worth less than that of a wealthy young person. This is ethically incorrect.
Hence, the supreme court decided to not use this method and added further elements to the formula. These parameters include medical costs faced by victims during litigation and any future medical costs. Apart from these, mental and physical pain are counted too. Hence, the amount of compensation largely varies from case to case.
Q. My patient has filed a case of Medical Negligence against me. What should I do?
In such a case, you should immediately take action to defend yourself. The alleged party needs to file a written statement within 30 days. In addition, a grace period of 15 days is granted by the Hon’ble Supreme Court.
The Hon’ble Supreme Court has directed in a Hilli multipurpose judgement that the patient should get time-bound relief. As per the current law, any complaint that has been received by the alleged doctor or hospital has to be replied to within 45 days. Hence, the doctor or the hospital should most immediately get in touch with a reliable Medical Negligence Advocate. As an experienced advocate myself, I'll advise you to not take it casually & prepare your defence in a proper detailed manner.
Q. What are the implications of a Medical Negligence verdict against me?
If a doctor or a hospital is found guilty/negligent, there will be a judicial order. A few judgements also get published publicly so it has got wider consequences & serious implications than most professionals realise. This in turn gravely affects the credibility of the hospital and its doctors.
Q. How serious can it get for my medical career/practice?
Please note that Medical Negligence law unlike the Indian Penal Code is not a codified law. It is a judge-made law based on various judgements.
In case the complaint is registered under a professional body like the Medical Council and the doctor is found guilty or delinquent, the implications can be very serious:
The license to practice can be temporarily suspended
A warning can be issued
Or in the worst case scenario, permanent removal of your name from the list of medical professionals. That means your licence to practice can be permanently cancelled as well.
So, it is truly advised to responsibly follow ethical practices as medical professionals.
Q. How do I defend myself?
You must immediately hire a trusted Medical Negligence Lawyer. There is a whole process to approach the situation. They will help you prove that as a medical practitioner, you religiously follow the Code of Medical Ethics. Just trust them and be honest with them about your situation and you'll be okay.
Q. What all platforms can the patient use to sue me?
A consumer/patient has the following options:
To approach a professional body like the State Medical Council. Here they can directly appeal for the cancellation of your licence as a doctor.
To approach the Consumer Court (also called Consumer Dispute Redressal Forum) seeking compensation. The action will be taken under the Consumer Protection Act.
To lodge an FIR at a police station to initiate criminal action. They can sue you at the Criminal Court as well under the Indian Penal Code.
In each situation, you will have to contact a Medical Negligence Lawyer by preparing a good defence.
Note: In case of alleged criminal negligence, any FIR can only be lodged in case a body of experts has held the professional to be criminally negligent.
Q. What aspects of Medical Negligence does the court look at?
There are 3 components that the court looks at:
The doctor owed a duty of care to the patient.
There was a breach of that duty towards the patient.
As a result of that breach of the duty of care, harm came to the patient.
Hence, the doctors & the hospitals, while they are rendering care must follow all the standards of care and follow the principles laid down in various judgements of the national commission & the Hon'ble Supreme Court.
Q. What is an Indemnity Insurance Policy? How is it made?
Often known as Professional Indemnity or PI, this is a very important Insurance plan for medical practitioners. In the cases of lawsuits against them, this insurance policy safeguards them financially against legal costs and compensation claims.
You need to get in touch with a trusted Medical Negligence Lawyer to get it made for yourself. You can always email me at email@example.com to get it made for yourself
Q. Should I have an Indemnity Insurance Policy as a doctor?
Yes, you should. An Indemnity Insurance Policy can be one of the best decisions for a doctor. In the event of you being found negligent and compensation needs to be awarded, the insurance comes to your rescue and the compensation amount is paid by the insurance company. It directly saves you from the risk & liabilities of compensating the other party.
Q. What does an Indemnity Insurance Policy for Doctors cover?
The Indemnity Insurance Policy covers the following items:
The legal cost involved in defending yourself in a court of law
Compensation awarded to the victim (which should not be due to wilful neglect)
Unintentional omissions & errors
Insurance (if) extended to other employees/partners in the same profession.
Note: In case the doctor’s employee or hospital’s employee is found negligent then the insurance covers that cost as well.
Q. What is the limit of an Indemnity Insurance Policy coverage?
First, like any other insurance, the amount of coverage and features depend on the amount of insurance you have underwritten.
Second, to understand it deeply, you must understand the AOA (Any One Accident) and AOY (Any One Year) limits. Imagine if you are a doctor with an Indemnity Insurance cover of 10 lakhs and the policy ratio of AOY: AOA is 1:2. If you lose a case asking for compensation worth 6 lakhs, the policy will only cover 5 lakhs. This will ensure that you will have a cover of the remaining 5 lakhs for another accident that might occur in the same year.
Q. What does an Indemnity Insurance Policy for Doctors not cover?
The medical treatment given for the following is not covered under PI for doctors:
The following medical cases are not covered under PI for doctors:
Loss of Goodwill
Medical practice is done under narcotics or alcohol Influence
The following losses will not be covered under PI for doctors:
Losses Due to War/Invasion/Terrorism
Losses Due to Unfair Competition
Losses Due to Bankruptcy or Insolvency
Losses Due to Fraudulent Claims
Losses Due to Contractual Liability
Note: It is crucial to note that this insurance policy strictly doesn't cover any under-the-table transactions done to get out of the unfavourable situation.