Dos and Don'ts in Medico-Legal cases - Adv. ROHiT Erande.©

  Dos and Don'ts in  Medico-Legal cases

- Adv. ROHiT Erande.©

Introduction :

"The Doctors are the angles of God as God can't be everywhere" such kind of whatsapp forwards many of us must have read, but in reality what happens ?

The Medicos will agree with me that in these days Doctors have fear at the back of their mind that they might get embroiled in Medico-Legal Cases, commonly known as MLC. The relationship between Doctors and Patients is going through the vicious circle that patient think that  Doctors are just minting money having no regard to patient at all and at the other hand Doctors see almost every patient as a future litigant and that they will get beaten up at the hands of patient's relatives. Lets' try to see the topic "how to handle medico-legal cases " in short. 

What is a Medico-Legal Case ?

As the name itself indicates, Medico-Legal Case (MLC for Short) refers to a case of injury, illness or death that requires intervention of law enforcement agencies. e.g. Road Accident cases, Suicide cases, and mostly the cases filed by patient or relatives against Doctors for Medical Negligence come within the purview of MLC.  Of course, not all cases of injury, illness or death.

Broad classification of MLC. 

1. MLC may be broadly classified in two categories, Civil and Criminal. We will be dealing with the cases in which Doctors' role in treatment is questioned or where allegations of Medical Negligence are levelled against Doctors.  

2. The Civil and Criminal cases can continue simultaneously. We can never stop anyone from going to Court against us. But merely a case is filed that does not mean it will be decided in favour of the Complainant. The Burden lies on the complainant to prove his/her case. The job of the Doctor is to treat the patient as per his own skill, experience and to follow standard treatment protocol. 

3. Generally any case starts with sending a legal notice.  A doctor would receive a notice from the patient alleging the Medical Negligence alongwith (huge) compensation amount. I must mention here that whatever notice, summons issued against you, you must accept it and never return it as unclaimed, else you will never come to know what exactly has been alleged against you. There is a general tendency which we see in our practice that people just refuse to accept the notice /summons. Such refusal is not going to absolve you from the case.

Civil MLC -

a. Civil cases are the cases which are filed for claiming damages for medical Negligence and mostly these cases are filed in Consumer Forums. 

b. It is a three tire hierarchy, i.e. District Commission, State Commission and National Commission, new Delhi.   The recently amended Consumer Protection Act (CPA) has enhanced the pecuniary jurisdiction of all the Commissions. 

Pecuniary Jurisdiction :

c. Now as per recent amendments in CPA, complaint upto Rs.50 lakhs  can be filed in District Commission. Above Rs.50 lakhs upto Rs.2 Crore compliant will be filed in State Forum and  above Rs.2 Crore, the National Commission has the jurisdiction. 

Territorial Jurisdiction :

d. So also, now the new amendment gives right to the Complainant to file the case where he/she resides. So e.g. a person who has taken treatment from Pune, who resides in Chennai, can file a compliant in Chennai Consumer commission as per the amount of claim.

Criminal MLC :

a. Road Accident Cases, Suicide Cases and the cases where a patient dies and a police compliant is made against Doctors come within the purview of Criminal MLC.

b. There are umpteen  number of incidences wherein a patient dies, Doctors get arrested on the alleged ground of Medical Negligence  and charges under Section 304-II instead of Sec.304-A IPC are imposed and have to run from this court to that court for bail. It's the prerogative of Investigating authorities to put the charge or sections, it's legality will be decided by the Courts.

304. Punishment for culpable homicide not amounting to murder— Whoever commits culpable homicide not amounting to murder shall be punished with 1[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

There is a famous adage which says, "Every murder is culpable homicide, but every culpable homicide is not a murder". the Medical Negligence cases fall under the later part. 

If this section is imposed, then it becomes a non-Bailable offense and punishment is 10 years.!! The job of the Police Authorities is very important in such cases as to which sections are to be imposed. If Sec.304 is imposed, then Doctors have to go for anticipatory bail for avoiding arrest.

Another section of IPC 304-A talks about causing death by Negligence and which is generally applied in case of death in MLC.

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 fine, or with both. This is a bailable section, so Doctors get the bail as of right. 

But in case of arrest of Doctors in Medical Negligence Cases, as a Special case I would say, the Police Authorities have to follow certain guidelines as laid down long back by Hon'ble Supreme Court.  

The Hon. Supreme Court in its 5 judges constitutional Bench judgment, in the celebrated case of Lalita Kumari V/s. state of U.P. (2014 (2) SCC 1) - ( https://indiankanoon.org/doc/10239019/) has given solace to Doctors in the matters of arrest. The bench was dealing with mandatory lodging of FIR in cognizable offenses, it was observed, 

"Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offence, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. One such instance is in the case of allegations relating to medical negligence on the part of doctors. It will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint." 

Their Lordships had asked Central /State Govt. to frame guidelines in these regards in consultation with MCI, but till date no one has taken any steps. Their lordships further relied upon the famous judgment of Jacob Mathew as mentioned herein above. The Court gave guidelines as under :

The category of cases in which preliminary inquiry may be made are as under:

a) Matrimonial disputes/ family disputes

b) Commercial offences

c) Medical negligence cases

d) Corruption cases

e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.

In the above case also, their Lordships relied upon the Celebrated judgment of Hon’ble Supreme Court (3 Judges bench) ,  in the case of Jacob Mathew v/s. State of Punjab (AIR 2005 SC 3180 = 2005(6) SCC 1), itself has given clear cut guidelines on arrest of Doctors in case of Medical Negligence Cases.

Thus now in Medical Negligence cases, Preliminary enquiry is a must and before that No arrest can be made. 

Remember, no one can prohibit Police from filing of an FIR, but whether to make arrest of doctors should be as per the guidelines of the Hon'ble Apex Court in above mentioned judgments

How to Defend the Medico-legal cases ?

a. The Doctors are always arrayed as Defendant /Accused in MLC cases. 

b. As stated earlier, generally MLC starts with a notice sent by the complainant. So a befitting reply has to be given, through the expert Advocate. This reply will become the base of your written statement.

c. Maintenance of Record : Record keeping plays an important role. It is said that "Poor record is Poor Defense, No Record is No defense" . In the court of law, the Court will rely upon the medical record. Thus there should not be any hesitation in keeping the medical record at any given point of time. The Staff should be trained in this regard. The Record should be properly signed.

There should not be any tampering with record.

d. Consent : The informed consent, which is a part of record keeping, is important aspect which is often questioned in the Courts. The law of informed Consent is now well settled in India by virtue of the landmark judgement of Hon. Supreme Court in the case of Samira Kohli V/s. Prabha Manchanda, AIR 2008 SC 1385. 

You may see the following blog on law of Informed Consent. 

https://advrohiterande.blogspot.com/2017/07/why-informed-consent-is-of-utmost.html

e. Asking for an Expert Opinion :

The expert opinion plays an important role in MLC. The earlier law which mandated compulsory expert opinion, was later on modified by Hon. Apex Court. Let's see it in nutshell as under.    

In Martin F Dsouza V/s. Mohd. ishfaq, (AIR 2009 SC 2049)  the Hon. Apex Court held that an Expert opinion is must before filing the Medical Negligence and observed that "The courts and Consumer Fora are not experts in medical science, and must not substitute their own views over that of specialists." 

However this view was later on altered  by the subsequent judgement of Hon. Supreme Court in the case of V. Krishna Rao V/s. Nikhil Super Specialty Hospital (2010) 5 SCC 513.  It was observed therein that “In the opinion of this Court, before forming an opinion that expert evidence is necessary, the Fora under the Act must come to a conclusion that the case is complicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by the members of the Fora without the assistance of expert opinion”

Nevertheless, the expert or for that matter any opinion is never binding upon the Court. The Court still can take contrary stand to opinion. 

Thus even if Consumer  Court has discretion to call for the Medical Expert opinion, there is no embargo if the party during Evidence produces expert opinion in support of its case. See the following case.

https://advrohiterande.blogspot.com/2017/07/proper-treatment-saved-drs-from-adverse.html. 

It was observed that "If the treatment given by Doctor is found to be proper (by the court), the Expert opinion, though adverse, has no significance.."

f. Indemnity Insurance : 

In these days, the Insurance Companies are offering various policies which take care of compensation awarded by the Court. Even though, generally Hospitals are vicariously held liable to pay damages for the Negligence of its Doctors, it is better to have a policy.    Many Doctors have already started taking the Insurance Cover. Of course, this will be useful only in cases of damages and not in criminal MLC. 

g. Two words with the patient and relatives :

It may sound funny. But in reality and in our experience it is seen that the patient and relatives expect that the Doctors give few minutes to them and answer all their queries and give them hope. Remember, human interaction has no alternative. It might be difficult for Doctors to spare time for each and every patient, but if not every day, then at least ask the Junior Doctors to talk with the patient. The patient gets relived if a Doctor talks with him/her. But if a Doctor has no time or speaks very curtly, it starts brewing  bad feeling about Doctors and such cases  are likely lead to MLC. 

h. Take Legal expert's help :

This is most important point. As self medication may lead to dreadful consequences, so do in case of Self legal assistance.  If your case is not represented properly since the beginning, you are going to be the lone sufferer. At times its also seen that the hospital may take  stand in case of the Doctors that "you are on your own". thus have your separate legal consultant. 

 i. Compromise / Settlement :

There are certain cases which are worth compromising. When a Doctor is aware that the benefit of doubt is to be given to patient and if the Doctor is in a position to bear to amount of Compensation agreeable to both the parties, then the  case can be compromised by executing necessary agreement or even before the Court. 

These points are not exclusive. On a broader prospective, I have tried to jot it down. Always remember, every case has different facts and facts play very important role. 

With kind regards,

 Adv. ROHiT Erande.©

Pune.