Of recent, there has been a significant rise in litigation against medical professionals. A growing awareness about patients’ rights, medical exposure, timely judicial intervention and perceptible decline in professional standards maintained by a part of medical fraternity are some of the reasons responsible for this spurt of litigation against doctors. It has resulted in stigma on the meritorious career of the medical practitioner. Though practising medicine is an ever green field, doctors are most vulnerable to legal matters in their busy practice.

Legal suites are filed against doctors on the pretext of negligence, corruption and their wrong professional decisions. Non-medical investigating agencies do treat all above allegations as malpractice and prepare a ground for litigation against doctors. Like other citizens of India, doctors cannot make any excuse for proven negligence on their part and have to face consequences as per law.

A professional decision taken by the doctor while treating the patient, if later proved wrong cannot be treated as negligence because a doctor provides medical services to the patient to the best of his knowledge. If a doctor does not have the requisite knowledge, he should be debarred from practising and such decision can only be taken by a medical council.

Analysis of professional decision of a doctor can only be done by an expert from the same speciality rather than any other person. Members of Hon`ble judiciary are requested to differentiate between a case of negligence and error-full professional decisions and are requested to refer the case to the committee of experts before reaching any conclusions.

Doctors are treated as next to god because they are medium for providing relief to patient. Doctors are very close to the reality of life as they witness life and death routinely in their practice. Doctors do not deviate and get disturbed when faced with adverse situations. In this era of stress, doctors can afford to remain honest, as with honesty only, wisdom prevails.

Cases against doctors, nurses, and hospitals are the most difficult and complex lawsuits that lawyers handle. These actions needs to be strongly defended by the doctors’ community and are rarely settled before going to trial. Very few law firms in India are well recognized as an expert in this area of the law, to impart valuable suggestions to doctors at large about medical negligence.

It is important, to understand that these cases are not about retribution or apology, but for the sole purpose of recovering monetary compensation for victims of negligent or wrongful conduct. These claims are not akin to a complaint process and claimant often ends up with better information about the actual cause of their predicament or disability. Investigation and sanctions for substandard medical conduct is the function of the various regulatory agencies governing each medical professionals.

Medical malpractice claims usually take years to complete, depending upon complexity. It is important to understand that, unlike automobile accident claims, medical negligence litigants do not receive on-going compensation while the lawsuit slowly progresses.

The main aspects dealt in such Litigation involve:

• Defending doctors against a claim of medical negligence.
• Defending hospital for in the case of vicarious liabilities.
• Filing petition for damages in court for medical negligence.
• Appeal from an un-favourable order
• Criminal complaint against doctors
• Opinion on medical negligence

In Poonam Verma v. Ashwin Patel & Ors, the Supreme Court held that “Negligence has many manifestations —it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, wilful or reckless negligence or Negligence per se.”

In V.N.Shrikhande vs Anita Sena Fernandes [(2011) 1 SCC 53] the Supreme Court had held that in cases of medical negligence, no straitjacket formula can be applied for determining as to when the cause of action has accrued to the consumer. Each case is to be decided on its own facts. If the effect of negligence on the doctor’s part or any person associated with him is patient, the cause of action will be deemed to have arisen on the date when the act of negligence was done.

Thus, Lawyers play a major role in imparting valuable suggestions to doctors about medical negligence. Cases against doctors, nurses, and hospitals are the most difficult and complex lawsuits and only lawyers can help the doctors to handle the situation.

Naveen Tao
Advocate – Law & Life
10/1, 1st floor, Serpentine road,
Kumara Park West, Bengaluru 560020
Mob: 91 9481101961/8867378881

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