A doctor can be charged with medical negligence only if the patient can prove that the doctor is guilty of a failure that otherwise could have been avoided if proper care had been provided. In such cases, the victim has to show an injury or damage that resulted from the doctor’s deviation from the standard of care applicable to the procedure.

No, a doctor can never fully guarantee a patient or even his/her relatives for a complete success of a treatment they are going through.

Primarily, a patient or a person who has suffered the problems caused by medical negligence can write a written complaint to the Medical Superintendent of the concerned Hospital with the copy to Chief Medical Officer or a Civil Surgeon of the area. If the person or patient is not satisfied with the reply of the concerned official, then he/she may send a written complaint to the State Medical Council.

You have the option to approach to the Medical Council of India by sending a written compliant of the issue. If you are not satisfied by the orders of the national commission, then the final resort left with the complainant is to move to the Supreme Court of India. A period of 30 days is provided to every person who wants to appeal to any higher authority to file for an appeal.

In that case, where the person or the patient or the relative of the patient want to file a criminal complaint, the respective person can approach the local police station to file a written complaint. However, an expert opinion shall be taken by the complainant before filing any criminal complaint.

Yes, a person can also file a civil complaint by approaching a consumer forum/commission, civil court as the case maybe, for seeking damages arising out of the negligence.

It is important that you know your rights as patient:

• Patients have the right to be told about their illness/to have their medical records explained.
• Patients should be explained about whatever treatment/medicines are prescribed to them.
• They should be made aware of the risks and side effects, if any.
• They have the right to ask questions and clarify their doubts about the treatment.
• Patients have the right to know a doctor’s qualifications.
• Patients have the right to be handled with consideration and due regard for their modesty when being physically examined by the doctor.
• Patients have the right to maintain confidentiality regarding their illness and can expect the same from the doctors.
• Patients have the right to a second opinion if they are doubtful about the medicines or treatment suggested.
• Patients have the right to know what a suggested operation/surgery is for and the possible risks involved. If he/she is unconscious or unable to make the decision due to other reasons, informed consent needs to be taken from their nearest relatives.
• Patients have the right to get their medical records/case papers on request from the doctor /hospital.

While filing the complaint, a patient shall provide the facts of his/her first meeting with the doctor till the last contact with him/her. Along with that, a second opinion from the Medical Expert supporting claim for such negligence with the medical records shall strengthen the claim.

The constitution favours the complaint against the medical negligence committed against the patients under Article 21 and Article 32.

Under Article 21, The Constitution includes provisions that guarantee people’s right to the highest achievable standard of physical and mental health.

The right to health is integral to the right to life and the government has a constitutional responsibility to provide health facilities.
If a government hospital fails to provide a patient with timely medical treatment, then it results in the violation of the patient’s right to life. Similarly, the Court has upheld the state’s responsibility to maintain health services.

Article 32 provides the right to Constitutional remedies. This means that a person has the right to move to the high court or the Supreme Court to protect their fundamental rights. While the Supreme Court has the power to issue writs under article 32. Therefore, if a person wants a remedy for negligence, he/she can file a suit under Article 32 of the medical negligence laws in India.

The liability of the Hospital with respect to medical negligence can be either direct liability or vicarious liability.

Direct Liability refers to the lack of a safe and suitable environment in the hospital for treatment as promised whereas Vicarious Liability is liability of an employer for the neglectful action done by its employee. An employer is responsible for his/her employee’s act as long as the act occurs within the field and scope of their employment.

A hospital can be held liable on certain grounds:

• If they fail to maintain equipment in proper working condition. If the patient faces loss due to the lack or non-working equipment, the hospital can be held liable.
• Hospitals have to hand over copies of medical records, X-rays, etc. If they don’t, it constitutes as negligence or insufficiency of service.
• It is the right of every patient to have it in writing about their medical illness, treatment given on a prescription and the discharge ticket. Failure of providing this amounts to negligence.

Four IPC Sections can be applicable in such cases:

• Section 304A (Causing death by negligence): Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with a fine, or both.
• Section 336 (An act endangering life or personal safety of others): Whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to Rs 250, or both.
• Section 337 (Causing hurt by an act endangering life or personal safety of others): Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either des­cription for a term which may extend to six months, or with a fine which may extend to Rs 500, or with both.
• Section 338 (Causing grievous hurt by act endangering life or personal safety of others): Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to Rs 1,000 or both.