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Negligence is a tort, which is an uncodified law in India. It means that a person owed a duty of care to another person, the first person breached that duty as a result of which the second person got injured. For instance, A driver while driving owes a duty of care to all the people on the road, if he drives negligently and injures another person on the road. He had a duty of care and due to the breach of the duty the person was injured and hence he would be held liable to pay damages.

A type of negligence that has gained widespread importance is medical negligence. As the name suggests it is related to the field of medicine and to medical professionals.

Examples & Cases of Medical Negligence

Some examples of medical negligence include-

·         Leaving a pair of scissors, hand towels etc. inside the stomach after the operation.

·         Removing a healthy body part without obtaining prior permission from the patient.

·         Misdiagnosis

·         Practicing without obtaining a license to do so.

·         Failure to take reasonable care and caution while operating the patient.

·         Giving overdose or under dose of medicines.

·         Sexual misconduct etc.

A better understanding can be gained of the topic by reading the facts of the case SishirRajanSaha v The State of Tripura. In this case the plaintiff met with an accident and was admitted into the emergency ward of the hospital. The senior doctor of the hospital was repeatedly called and informed about the situation but he failed to show up as he was engaged in attending to his private patients. It was held that the doctor had a legal duty to attend to the patients of the hospital as he was an employee of the hospital. The doctor breached that duty and was held liable and had to pay damages to the plaintiff.

In another case, State of Haryana v Smt. Santra, a lady got a sterilization operation. After the operation, she developed pregnancy. She filed a case against the doctor and it was held that due to the negligence of the doctor the operation was unsuccessful and the family had to go through an unwanted pregnancy. Thus, the doctor was held liable and had to pay damages to the patient.

An important Public Interest Litigation (PIL) concerning medical negligence was ParmanandKatara v Union Of India, wherein it was held that saving the life of the patient is of paramount importance.

Components of Medical Negligence

There are the following components of the tort of medical negligence

There was a legal duty- The relation between a doctor and a patient is backed by trust. When a patient approaches a doctor for treatment it becomes the legal duty of the doctor to administer the treatment to the patient with due care and caution.

The professional breached the duty- If the medical professional breaches the duty by failing to observe due care and caution while treating the patient, the medical practitioner can be held liable for medical negligence .However, if an injury was caused but not due to the negligence of the doctor, the patient cannot hold the doctor liable for the tort of medical negligence and cannot take action against medical negligence.

The patient suffered injury- If the patient suffered injury, loss and/or damage due to the negligence of the doctor/practitioner, then the patient can file a case against the doctor and can send legal notice to doctor for medical negligence.

How to Take Legal Action Against Your Doctor

When we approach a doctor, we are basically consumers asking for his/her service in exchange of money. If the doctor breaches his legal duty, a consumer has the right to move the consumer redressal forum for redressal of his grievance. As a citizen, we have various other rights in India and can send legal notice to doctor for medical negligence. The following steps need to be followed in order to take a legal action against medical negligence by your doctor and to enforce the violated right-

Step 1: File a complaint in the consumer redressal commission which has the jurisdiction to address your grievance.

Step 2: Submit a mandatory court fee along with the required documents such as bills, receipts, telephonic and/or electronic conversations etc for action against medical negligence.

Step 3: Ensure that the complaint is filed in writing within 2 years of getting the service by the doctor.

Step 4: The complaint must include the name and contact information of the person who has the grievance and against whom the grievance is being filed. It should also specify the method of redressal which might be free of cost operation, monetary compensation etc.

Step 5: The forum will give the party against whom the complaint has been made a period of 30 days to appear before the forum and to defend himself/herself.

Step 6: After giving opportunities to both the parties and hearing them, the forum will deliver a judgment.

Step 7: If either of the parties is not satisfied with the decision, an appeal may be made to a forum higher in the hierarchy of consumer redressal commissions.

The tort of medical negligence follows the latin legal maxim res ipsa loquitur, which means thing speaks for itself. If a doctor has been negligent in performing your sterilization operation due to which you got pregnant, no further evidence needs to be furnished to prove medical negligence and can take action against medical negligence.

Consumer Redressal Forums

The act provides for three consumer redressal commissions. At the apex of the hierarchy we have National Consumer Redressal Commission.

National Consumer Dispute Redressal Commission

Section 21 of the Consumer Protection Act provides for the establishment of a National Consumer Disputes Redressal commission which can deal with cases whose cause of action lies anywhere in the territory of the country or the parties reside or carry on business anywhere throughout the territory of the country. Its pecuniary jurisdiction is more than Rs. 1 crore, this means it can deal with cases wherein the amount claimed in the suit exceeds Rs. 1 crore. If any of the party is not satisfied with the judgment, an appeal can be made to the Supreme Court of India within a period of 30 days. The NCDRC can keep an eye on and hear appeals from the State Consumer Disputes Redressal Commission and the District Consumer Disputes Redressal Commission.

State Consumer Dispute Redressal Commission

Every state has to establish a state forum in order to redress the grievances of the consumers and to unburden the NCDRC. The state forum can deal with cases whose cause of action lies within the territory of the state or where the party/ parties reside or carry on business within the boundaries of that particular state. The pecuniary jurisdiction is uptoRs. 1 crore, this means that a complaint claiming an amount between Rs. 20 Lakhs and Rs. 1 Crore can be addressed by the state forum. If the any party is not satisfied with the judgment, an appeal can be made to the NCDRC of India within a period of 30 days. The state forum can keep an eye on and hear appeals from the District Consumer Disputes Redressal Commission also known as the district forum.

District Consumer Dispute Redressal Commission

Every state has to establish a district forum in each district within the state in order to redress the grievances of the consumers and to unburden the NCDRC and the SCDRC. The district forum can only deal with cases whose cause of action lies within the territory of the district or where the party/ parties reside or carry on business within the boundaries of that particular district. The pecuniary jurisdiction is uptoRs. 20 Lakhs, this means that a complaint claiming an amount below Rs. 20 Lakhs can be addressed by the district forum. If any party is not satisfied with the judgment, an appeal can be made to the SCDRC of the state within a period of 30 days. The district forum is subject to the scrutiny of the SCDRC and the NCDRC as it is the lowest in the hierarchy of consumer redressal forums.