Dos and Don'ts while handling Medico-Legal cases - Adv. ROHiT ERANDE.©

  How to handle Medico-Legal cases ? What to do when you are implicated ?

- Adv. ROHiT ERANDE.©

Dear Participants of LAMP2 Certificate Course On Law and Medical Profession,  

Greetings. 

Introduction :

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 ?

Have you ever heard Architect-legal cases or Law-legal cases or Chartered Accountant -legal cases ?Nope. But it's only the Medical Profession by its nature  directly gets connected  with such cases. One may call it as the Professional Hazard. 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.

Types of MLC. 

a. 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.  

b. 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. 

c. 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. 

c. Now complaint upto Rs.1 Crore can be filed in District Commission. Above Rs.1 Crore upto Rs.10 Crore compliant will be filed in State Forum and  above Rs.10 Crore, the National Commission has the 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, Sucide 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.

The Doctors are saved by the landmark judgement of Jacob Mathew V/s. State of Punjab, 2005(6) SCC 1, against highhanded action of authorities in arresting Doctors.

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 Defence, No Record is No defence" . 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 Speciality 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. 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. 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.