If you are stuck in such a situation, here is what to do.

Mr. Sameer Verma, a resident of a tier-2 city named Rajkot, was experiencing persistent neurological discomfort. He consulted a reputed neurologist, Dr. Anil Gupta, at the “Wellness Neurology Center.” After an evaluation, Dr. Gupta prescribed a course of SSRI antidepressants to manage his condition. Mr. Verma followed the prescription diligently. However, within a few weeks of starting the medication, he began experiencing severe erectile dysfunction, a condition he had not faced before. Worried, he researched the medication and found that this could be a significant side effect. He feels that Dr. Gupta failed to provide adequate warning about such a severe potential side effect, thereby not obtaining his informed consent for this line of treatment. Mr. Verma believes this constitutes medical negligence and is now exploring his legal options to file a case and seek compensation for the physical and mental anguish caused.

Advice in such cases

Dealing with a situation of medical negligence can be overwhelming. Here are some immediate steps to consider:

• Gather All Documentation: Collect every piece of paper related to your treatment. This includes the doctor’s prescription, consultation notes, pharmacy bills, diagnostic reports (both before and after the treatment), and any follow-up communication with the doctor or clinic.
• Seek a Second Medical Opinion: It is crucial to consult another qualified doctor, preferably in the same specialty. This second opinion can help confirm if the prescribed medication was indeed the cause of your condition and whether the first doctor’s actions deviated from the standard medical practice.
• Document Your Experience: Keep a detailed journal of your symptoms, the timeline of medication intake, the onset of side effects, and the impact it has had on your physical, emotional, and marital life. This personal record can be valuable evidence.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

Applicable Sections of Law

Medical negligence cases in India are primarily governed by the law of torts and specific statutes. The key legal frameworks are:

• The Consumer Protection Act, 2019: Under this Act, a patient is a “consumer” and the medical services provided by a doctor or hospital are “services.” If there is a deficiency in service, such as negligence in treatment, a complaint can be filed in the Consumer Disputes Redressal Commission.
• The Bharatiya Nyaya Sanhita, 2023 (BNS): In cases of gross negligence, criminal proceedings can be initiated. Relevant sections may include:
  • Section 117 of BNS: Pertains to causing hurt by an act that endangers life or the personal safety of others.
  • Section 118 of BNS: Deals with causing grievous hurt by such an act. Depending on the permanence and severity of the condition, it could be argued as grievous hurt.
• The Law of Torts: A civil suit for damages can be filed in a civil court, claiming compensation for the negligence and the harm suffered. This is based on the common law principles of duty, breach, causation, and damages.

If you are the complainant

As the person filing the complaint, you need to be systematic in your approach:

• Preserve All Evidence: Your case will be built on the evidence you provide. Ensure all medical records, bills, and expert opinions are safely stored and organized.
• Obtain an Expert Opinion: The most critical piece of evidence is a report from another medical expert. This report must clearly establish a direct link between the prescribed drug and your condition and opine that the treating doctor was negligent in their duty of care (e.g., by not warning of risks or prescribing an inappropriate drug).
• Send a Legal Notice: Your lawyer will typically start by sending a detailed legal notice to the doctor and/or the hospital. This notice outlines your allegations and demands compensation, giving them an opportunity to settle the matter.
• File the Complaint: If the notice does not result in a satisfactory response, your lawyer will draft and file a formal complaint in the appropriate forum, which is most often the Consumer Commission. The jurisdiction (District, State, or National) depends on the value of the services and the compensation claimed.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

If you are the victim

As the victim of alleged negligence, it’s important to focus on your well-being while pursuing justice:

• Understand Your Rights: You have the right to competent medical care, the right to be informed about your treatment and its risks (informed consent), and the right to your medical records.
• Do Not Be Intimidated: The doctor or hospital may try to dismiss your claims. Stand firm and let your lawyer handle all communication. Do not engage in direct arguments or confrontations.
• Focus on Recovery: While the legal case proceeds, continue to seek proper medical care to manage or reverse the side effects, if possible. Your health remains the top priority.
• Seek Support: Dealing with such a personal health issue and a legal battle can be stressful. Lean on your family, friends, or a professional counselor for emotional support.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

How the police behave in such cases

Police involvement in medical negligence cases is limited and guided by strict Supreme Court directives. Generally, the police will not register an FIR for criminal negligence against a doctor based on a patient’s complaint alone. Following the landmark judgment in Jacob Mathew v. State of Punjab, the police are required to seek an independent and credible opinion from a government medical board or a panel of doctors in a government hospital. Only if this panel opines that a case of gross negligence is made out can the police proceed with an investigation or arrest. This safeguard is in place to prevent frivolous or malicious prosecution of medical professionals. In most instances, the police will advise the complainant to pursue their remedy in a civil court or the Consumer Commission.

FAQs people normally have

Can I sue if the side effect was listed in the drug’s information leaflet?

It is more challenging, but not impossible. The doctor’s duty is not just to prescribe a drug but to exercise their professional judgment. This includes explaining significant or severe risks to you, discussing alternatives, and ensuring the benefits of the treatment outweigh the potential harm in your specific case. This is the essence of “informed consent.” A failure to do so can still be grounds for negligence.

What is the difference between medical negligence and an error of judgment?

An error of judgment is when a doctor, having acted with reasonable care, chooses one of two or more accepted courses of treatment, and the chosen one turns out to be unsuccessful. This is not negligence. Negligence is a breach of the duty of care, i.e., failing to act with the skill and care that a reasonably competent doctor in that field would have exercised.

How much compensation can I claim?

Compensation is calculated based on several factors, including the cost of corrective medical treatment (past and future), loss of income, loss of quality of life, loss of consortium (impact on marital relations), and an amount for the mental and physical pain and suffering endured.

What evidence is required?

To build a strong case for medical negligence, you will need to gather comprehensive evidence, including:

• All medical records from the treating doctor, including consultation notes and reports.
• The original prescription for the medication in question.
• Bills from the pharmacy where the medicine was purchased.
• Medical reports from before the treatment to establish your baseline health.
• A detailed medical report from a second, independent doctor or a medical board. This is the most crucial evidence and should link the drug to your condition and comment on the negligence.
• Proof of expenses incurred for any corrective treatment you have undergone.
• Any written communication with the doctor or hospital, such as emails or text messages.

How long will the investigation take?

The duration of a medical negligence case can vary significantly. Cases filed in the Consumer Commission are intended to be resolved quickly, often within a year or two at the district or state level. However, appeals and procedural delays can extend this timeline. If the case is filed as a civil suit, it can take several years to reach a final verdict. Criminal investigations under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) are also typically lengthy processes.

Advocate Sudhir Rao, Supreme Court of India