How to handle Medico-Legal cases ? - Adv. ROHiT ERANDE.©
How to handle Medico-Legal cases ? What to do when you
are implicated ?
- Adv. ROHiT ERANDE.©
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 Sec.105
of BNS (Earlier 304-II of IPC) instead of Sec. 106 of BNS ( earlier 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.
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