Cpa & medical negligence
Querist :
Anonymous
(Querist) 12 November 2011
This query is : Resolved
Dear Sir/Madam,
A person has died in a private hospital due to negligence/wrong treatment given by the doctors. So, to file case in consumer court, what procedure should be followed?
Also, I have heard that first I will have to make complain at the state medical council and a copy to Medical Council of India and to health ministry. Is this necessary, since some says that state medical councils and MCI shields doctors and writing to them is wastage of time and money.
As I have read in an article which is below:-
.“We are unfortunate to be born in this country,” says a retired high court judge who did not wish to be named. He developed a urine infection after he needed a catheter for treatment at a prominent corporate hospital. “I had told the doctor I needed preventive antibiotics because of my diabetes and vulnerability to urine infection. He said I did not need it. I did get a urine infection and had to spend an extra 10 days there,” he says, adding he saw no hope in going to consumer courts. “Doctors are minting money. I feel defeated by the corruption in our society,” he says.
What the victim should do? Plz suggest.
Thanking all of you.
Shonee Kapoor
(Expert) 13 November 2011
You can follow both remedies.
Consumer Courts and report to MCI.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
ajay sethi
(Expert) 13 November 2011
Indian Penal Code, 1860 sections 52, 80, 81, 83, 88, 90, 91, 92 304-A, 337 and 338 contain the law of medical malpraxis in India.
A physician can be charged with criminal negligence when a patient dies from the effects of anesthesia during, an operation or other kind of treatment, if it can be proved that the death was the result if malicious intention, or gross negligence. Before the administration of anaesthesia or performance of an operation, the medical man is expected to follow the accepted precautions.
In such cases, the physician should be able to prove that he used reasonable and ordinary care in the treatment of his patient to the best of his judgment. He is, however, not liable for an error judgment. The law expects a duly qualified physician to use that degree of skill and care which an average man of his qualifications ought to have, and does not expect him to bring the highest possible degree of skill in the treatment of his patients, or to be able to guarantee cures.
ajay sethi
(Expert) 13 November 2011
Highlights of the Supreme Court of India judgment in
Indian Medical Association
Vs
V.P. Shantha and Others
As a result of this judgment, medical profession has been brought under the Section 2(1) (o) of CPA, 1986 and also, it has included the following categories of doctors/hospitals under this Section:
1. All medical / dental practitioners doing independent medical / dental practice unless rendering only free service.
2. Private hospitals charging all patients.
3. All hospitals having free as well as paying patients and all the paying and free category patients receiving treatment in such hospitals.
4. Medical / dental practitioners and hospitals paid by an insurance firm for the treatment of a client or an employment for that of an employee.
It exempts only those hospitals and the medical / dental practitioners of such hospitals which offer free service to all patients.
Further, this judgment concedes that the summary procedure prescribed by the CPA would suit only glaring cases of negligence and in complaints involving complicated issues requiring recording of the evidence of experts, the complainant can be asked to approach the civil courts.
Also, this judgment says that the deficiency in service means only negligence in a medical negligence case and it would be determined under CPA by applying the same test as is applied in an action for damages for negligence in a civil court.
As a result of this judgment, virtually all private and government hospitals and the doctors employed by them and the independent medical / dental practitioners except primary health centers, birth control measures, anti malaria drive and other such welfare activities can be sued under the CPA.
Querist :
Anonymous
(Querist) 13 November 2011
See the recent judgment of Apex court in Anuradha Saha case on 9thAug 2009, one of the observations is below, we can infer from it, that from private expensive hospitals, we can expect high degree of diligence and care, and they must keep pace with latest advancement.
(p.110) “The standard of duty to care in medical services may also be inferred after factoring in the position and stature of the doctors concerned as also the hospital”
edical care and
(p.106) “The law on medical negligence also has to keep up with the advances in the medical science as to treatment as also diagnostics”
Advocate Bhartesh goyal
(Expert) 13 November 2011
You can file the case against doctor and hospital before Consumer Forum but have to prove negligence and deficient service of doctor by cogent and expert evidece.
prabhakar singh
(Expert) 13 November 2011
All have given advises worthy to follow.
prabhakar singh
(Expert) 13 November 2011
All have given advises worthy to follow.
