If you are stuck in such a situation, here is what to do.
Mr. Rohan Sharma, a resident of Alipur, was recently involved in a minor road accident. He sought immediate medical attention at the local “Wellness First Hospital” for a deep gash on his leg. The attending doctor treated the wound and applied four stitches, advising Mr. Sharma to return after approximately twelve days for their removal. Following the doctor’s instructions, Mr. Sharma visited the hospital on the scheduled day. However, he was shocked when a different doctor on duty informed him that the initial stitches were done incorrectly and would need to be completely redone. This meant undergoing the painful procedure all over again, causing him further physical distress, mental anguish, and additional medical expenses.
Advice in such cases
If you find yourself in a similar predicament, it is crucial to act methodically and promptly to protect your rights.
Document Everything: Keep meticulous records of all interactions. This includes dates, times, names of doctors and staff, and a summary of conversations. If the hospital or doctor admits the error verbally, make a written note of it immediately.
Preserve Medical Records: Secure copies of all your medical files, including the initial treatment report, bills, prescriptions, and the report detailing the need for the corrective procedure. These documents are the foundation of your case.
Get a Second Opinion: If possible, consult an independent medical practitioner from a different facility. An expert opinion from a neutral third party confirming the initial negligence will significantly strengthen your claim.
Lodge a Formal Complaint: Write a formal complaint to the hospital’s medical superintendent or administration. Clearly state the facts, the negligence involved, and the subsequent harm caused. A written complaint creates an official record of the issue.
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 following laws:
The Consumer Protection Act, 2019: Medical treatment is considered a “service” under this Act. A patient is a “consumer” who has hired these services. If there is a “deficiency in service,” such as incorrect stitching, the patient can file a complaint in the appropriate Consumer Disputes Redressal Commission for compensation.
The Bharatiya Nyaya Sanhita, 2023 (BNS): In cases of gross negligence that endanger a person’s life or personal safety, criminal proceedings can be initiated. Section 119 of the BNS, which deals with causing hurt by a rash or negligent act, could be invoked. This is a higher standard to prove than a simple error.
Law of Torts: A civil suit for damages can be filed in a civil court, claiming compensation for the physical and mental suffering, financial loss, and other hardships endured due to the doctor’s or hospital’s negligence.
If you are the complainant
As the person initiating legal action, you need to be strategic and organized.
Gather All Evidence: Systematically collect all the documents mentioned earlier: medical bills, reports from both the initial and corrective procedures, and any expert opinions you have obtained.
Send a Legal Notice: Your lawyer will typically start by sending a detailed legal notice to the doctor and/or the hospital. This notice will outline the facts of the case, allege negligence, and demand compensation, giving the other party a chance to settle the matter.
File a Formal Complaint: If the legal notice does not result in a satisfactory resolution, your lawyer will help you file a complaint in the appropriate forum, which could be the District, State, or National Consumer Commission, depending on the value of the claim.
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
Your immediate priority is your health and well-being.
Seek Corrective Treatment: Do not delay getting the necessary corrective medical procedure. Your health comes first. If you have lost trust in the original hospital, it is wise to get this done at a different, reputable facility.
Document the Corrective Procedure: Ensure the doctor performing the new procedure documents their findings clearly, stating why the previous work was inadequate. This report is a crucial piece of evidence.
Manage Your Records: Keep all bills and prescriptions related to the corrective treatment separate and organized. These will form the basis of your monetary claim.
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
Approaching the police for medical negligence can be complex. Based on Supreme Court guidelines, the police are cautious when dealing with such cases. They will not immediately register an FIR against a medical professional. They are required to conduct a preliminary inquiry and seek an opinion from a qualified government medical expert or a board of doctors to ascertain if there is a prima facie case of “gross negligence.” In many instances, the police may advise you to approach the State Medical Council or pursue a civil remedy through the consumer courts first, as police action is reserved for the most serious cases of recklessness.
FAQs people normally have
Can I sue both the doctor who performed the initial procedure and the hospital?
Yes. The doctor is liable for their personal negligence, and the hospital can be held vicariously liable for the actions of its employees. It is common practice to name both the doctor and the hospital as parties in the complaint.
What kind of compensation can I claim?
You can claim compensation for various damages, including the cost of the initial and corrective medical treatment, costs for future medical care if required, loss of earnings during recovery, compensation for physical pain and mental anguish, and litigation costs.
Is filing a police complaint mandatory?
No, it is not mandatory. For cases like improper stitching, the most effective and common route is to file a case in the Consumer Commission. A police complaint is only for criminal negligence, which is much harder to prove.
What evidence is required?
Strong evidence is the key to a successful medical negligence claim. You should gather:
All medical records, bills, and discharge summaries from the initial treatment.
All medical records, bills, and reports from the corrective surgery or treatment.
A written expert opinion from another doctor or a medical board detailing the negligence.
Photographs of the wound after the first and second procedures, if possible.
Any written communication with the hospital, such as your formal complaint letter.
Proof of financial loss, such as salary slips showing loss of income.
How long will the investigation take?
The duration of a medical negligence case varies significantly. Cases filed in the Consumer Commission are intended to be resolved relatively quickly, often within one to two years, but complex cases can take longer. A civil suit in a regular court is a much more lengthy process and can take several years to conclude. If a criminal investigation is launched, its timeline will depend on the police’s ability to gather evidence and expert reports before filing a charge sheet under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
Advocate Sudhir Rao, Supreme Court of India