Medical Negligence: Liabilities & General Defences for Doctors under the Consumer Laws | Criminal Law Attorney for Medical Negligence Case in in Delhi NCR | Criminal Lawyer for Medical Negligence Case in in Delhi NCR |
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The realm of laws relating to “medical negligence” has three dimensions and are covered under three different legal categories i.e.
- Under the Civil Laws
- Under the Criminal Laws
- Under the Consumer Laws
The criminal negligence is covered under the Indian Penal Code, but, when criminal negligence is clubbed with the consumer laws then the same has been a matter of debate as to whether medical services are explicitly covered under the definition of “Services” as enshrined under the Section 2(1)(o) of the Consumer Protection Act, 1986. In a landmark decision the Hon’ble Supreme Court in the case of India Medical Association v. VP Shantha (Civil Appeal No. 688 of 1993) held that medical services are within the ambit of the term “Services” defined in the Consumer Protection Act, 1986. Thus, the patients can now sue the Medical Practitioner which includes Doctors, Nurses, Clinics, Hospitals including the Para Medical staff for deficiency in services before an appropriate Consumer Forum if patients sustained injuries in the course of treatment. The jurisdiction of the Consumer Forum depends upon two things i.e. the territorial jurisdiction and the pecuniary jurisdiction respectively. Further, the process for filing Consumer Complaints is/are very simple as the Complaint is to be substantiated with supporting evidences which shall include: Medical Evidence,s Factual Evidences & Circumstantial Evidences respectively.
Whereas the Medical Practitioners can file their respective replies followed by supporting evidences and testimonies of witnesses which shall include
- Patient Medical Records
- Records of Pre-Existing Diseases
- Records of Previous Incisions & Surgeries
- Circumstantial Evidences
- Testimonies of Para Medical Staff
- Detailed Contingency Reports
- Procedures & Protocols laid down in their Manuals
- Internal Medical Committee Audit Report for the particular case/incident
The position regarding medical negligence under civil law is also very important as in cases where services provided by doctors do not fall under the ambit of the Consumer Protection Act, 1986, the law of Tort begins where a patient can claim negligence, however, the onus to prove the act of negligence on the part of the doctor and hospital is on the patient.
The liability for medical malpractice is governed by different statutes and laws in India, however, the time has come where legislature should take steps to make an independent statute to govern medical malpractices. Another matter of concern under our current legal framework is the “Burden of Proof” i.e. if a patient alleges medical malpractice, he/she shall require a very high standard of medical evidence to prove the basis of his/her allegation. Further, there are frivolous and vexatious complaints filed by the patients against the Medical Practitioner which includes Doctors, Nurses, Clinics, Hospitals including the Para Medical staff for which an independent law for medical malpractices/negligence is a dire need to bring in to enable more accountability and transparency in the entire medical profession.
Authored By: Adv. Anant Sharma