• Suggestions needed to draft complaint against medical negligence

HI, My daughter age, 2 year was a patient of blood Cancer.
She was  treated with several chemotherapy  and multiple bone marrow transplant due to wrong chemotherapy selection. and lately after successful recover from blood cancer she was admitted for pulmonary problem and condition was not so bad. but not get proper treatment in same hospital was treated for blood cancer. Also she was infused 2 different injections and her condition got worsen and declared dead after few days. later i got a reply from FDA, USA for these 2 injections are not recommended to use together,  need your suggestion to go further. Thanks
Asked 1 year ago in Civil Law from NEW DELHI, Delhi
1) obtain copy of your daughter medical records from hospital medical council has imposed obligation . on Hospitals as per the
regulations notified on 11th  March 2002, amended up to December 2010 to maintain the
medical record and provide patient access to it. These regulations were made in exercise of
the powers conferred under section 20A read with section 33(m) of the Indian Medical
Council Act, 1956 (102 of 1956), by the Medical Council of India, with the previous approval
of the Central Government, relating to the Professional Conduct, Etiquette and Ethics for
registered medical practitioners, namely:­
Maintenance of Medical Records: 
1.3.1. Every physician shall maintain the medical records pertaining to his/her
indoor patients for a period of three years from the date of commencement of the
treatment in a standard proforma laid down by the Medical Council of India and
attached as Appendix 3. 
1.3.2.  If   any   request   is   made   for   medical   records   either   by   the
patients/authorised attendant or legal authorities involved, the same may
be duly acknowledged and documents shall be issued within the period of
72 hours.

2) complain to medical council against hospital and doctor who treated your daughter 

3) also file police complaint against doctor and hospital . Rely upon opinion furnished by FDA that these injections are not recommended for use 

4)also move consumer forum and seek compensation for negligence of Doctor 
Ajay Sethi
Advocate, Mumbai
23408 Answers
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1. You have two fold remedy under the Indian legal framework. You can file a criminal case against the hospital for medical negligence which carries an imprisonment of up to 2 years. This apart, you can also sue it to seek compensation for the medical negligence which resulted in the death of your daughter.

2. Only a court of law is competent to adjudicate the guilt of the hospital. The opinion of a board of directors along with the medical history of your daughter would be taken into consideration by the court. 

3. You need to engage a lawyer to proceed. A draft of a complaint will not get you anywhere.
Ashish Davessar
Advocate, Jaipur
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451 Consultations
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1) you can rely upon FDA mail in support of your case 

2) better take second opinion of Indian doctors based on your daughters medical records to make out a iron clad case 
Ajay Sethi
Advocate, Mumbai
23408 Answers
1230 Consultations
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file criminal case under section 304 A ipc and a civil suit for damages. You'll get appropriate damages. FDA email shall be read in evidence but it is not conclusive. all treatment records and therapy shall be examined by two independent doctors and their opinions are admitted by the court under section 45 evidence act.
Shivendra Pratap Singh
Advocate, Lucknow
2799 Answers
41 Consultations
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Before filing a case please understand following things .

What Is Medical Negligence?

The standard of care from doctors and hospital authority is expected to be more in comparison with other cases of negligence. The term negligence is defined as the absence or lack of care that a reasonable person should have taken in the circumstances of the case. Negligence is simply failure to exercise due care. The three ingredients of negligence are as follows:
1.	The defendant owes a duty of care to the plaintiff
2.	The defendant has breached this duty of care.
3.	The plaintiff has suffered an injury due to his breach.
And in case of medical negligence mostly the doctor is the defendant. Negligence is predominantly a theory of liability concerning allegations of medical malpractice, making this type of litigation part of the Tort Law. It is now a settled principle of law that a medical practitioner will bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. 

Normally the liability arises only when the plaintiff is able to discharge the burden on him of proving negligence. However, in some cases the principle of “res ipsa loquitor” which means the thing speaks for it might come into action. Mostly the doctor is liable only for his own acts. However in some cases a doctor can also be made vicariously liable for the acts of another. The example of such a situation is when a junior doctor assisting the senior doctor commits a mistake it becomes the duty of the senior to have supervised him hence vicariously liable.
The burden of proof correspondingly greater on the person who alleges negligence against a doctor. It is known fact that things can go wrong even wit the best doctor. And the guilt or the negligence should be established beyond all reasonable doubts that his skill fell below reasonable care that he ought to take during the treatment.

Burden of proof and chances of error
The burden of proof of negligence, carelessness, or insufficiency generally lies with the complainant. The law requires a higher standard of evidence than otherwise, to support an allegation of negligence against a doctor. In cases of medical negligence the patient must establish her/ his claim against the doctor.In Calcutta Medical Research Institute vs Bimalesh Chatterjee it was held that the onus of proving negligence and the resultant deficiency in service was clearly on the complainant 
Medicine is a noble profession and practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is that the law requires. 

1.	Damage to organ due to negligence.
2.	Wrong treatment due to wrong diagnosis.
3.	Money receipt or prescription or discharge summary or test reports when not provided.
4.	When treatment not chosen as accepted and established in medical norms /as per medical research/available medical literature.
5.	Theory of res ipsa loquitur [a thing speaks of itself] – in case any instrument left in the body, a wrong part removed, allopathic treatment given by a homeopathic doctor etc.
6.	Govt Hospital liable if contribution from the employee’s salary deducted OR Payment made by insurance company.
7.	Negligent if three steps necessary are not observed by the medical practitioners.
8.	First – To decide whether he has to take up the case or not: Third- Whether the treatment given as per the diagnosis made.
9.	Hospital can also be negligent if ‘it is a case of non- availability of oxygen cylinder either because of the hospital having failed to keep available a gas cylinder or because of the gas cylinder being found empty.

In your case onus of proving negligence and the resultant deficiency in service was clearly on the complainant .the complaint against the doctor must show negligence or rashness of such a degree as to indicate a mental state that can be described as totally apathetic towards the patient. Such gross negligence alone is punishable.The supreme court decision in Kunal Saha Vs AMRI (Advanced Medical Research institute ) is applicable in your case. This landmark ruling is supposed to remind doctors, hospitals, and nursing homes that they will be dealt with strictly if they do not maintain their standard of care
Ajay N S
Advocate, Ernakulam
1918 Answers
19 Consultations
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First of all issue a legal notice to Hospital regarding their negligence through counsel and demand your compensation if the are not ready then file a complaint before Consumer court and criminal court regarding their illegal act and negligence.

Emails can be used as an evidence but with the support of a certificate u/s 65B of Indian Evidence Act-1872.

Feel Free to Call
Nadeem Qureshi
Advocate, New Delhi
3539 Answers
131 Consultations
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This is a case of medical negligence and has remedies in law by way of punishment to the medical attendant/physician if found to have involved in the alleged offence and to claim compensation fro the hospital authorities for this act of medical negligence. 

 The three ingredients of negligence are as follows:
The defendant owes a duty of care to the plaintiff
The defendant has breached this duty of care.
The plaintiff has suffered an injury due to his breach.
And in case of medical negligence mostly the doctor is the defendant. Negligence is predominantly a theory of liability concerning allegations of medical malpractice, making this type of litigation part of the Tort Law.

Certain conditions must be satisfied before liability can be considered. The person who is accused must have committed an act of omission or commission; this act must have been in breach of the person’s duty; and this must have caused harm to the injured person. The complainant must prove the allegation against the doctor by citing the best evidence available in medical science and by presenting expert opinion.  In your case you have the report of FDA 's opinion with reference to the medicine administered to the patient which is against the treatment given by the doctor to your daughter.
Indian Penal Code 1860 sections 52, 80, 81, 83, 88, 90, 91, 92 304-A, 337 and 338 contain the law of medical malpractice in India.
A physician can be charged with criminal negligence when a patient dies from the effects of administration of wrong medicines if it can be proved that the death was the result of malicious intention, or gross negligence.
Gross Lack of competency or gross inattention, or wanton indifference to the patient’s safety, which may arise from gross ignorance of the science of medicine and surgery or through gross negligence, either in the application and selection of remedies, lack of proper skill in the use of instruments and failure to give proper attention to the patient.

You can take a second opinion form a skilled doctor and proceed with criminal complaint as well as a complaint with the consumer forum seeking compensation for the loss and deficiency of service due to medical negligence. 



T Kalaiselvan
Advocate, Vellore
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128 Consultations
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Hi, it is clear case of negligence you can file a complaint  before the consumer court for deficiency of service and you can also use email as evidence in your favour.

2. You can also lodge a complaint in the Medical council for negligence.
Pradeep Bharathipura
Advocate, Bangalore
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133 Consultations
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1) legal fees vary . no fixed estimate can be given 

2) you can contact any lawyer on this website from New Delhi if you so desire 
Ajay Sethi
Advocate, Mumbai
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1230 Consultations
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You should consult a lawyer and ask him his fee directly.
Ashish Davessar
Advocate, Jaipur
18275 Answers
451 Consultations
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Hi, the fee of the advocate is differ from person to person so you can contact any advocate in Delhi or contact any advocate who  listed in Kaanoon and they are practicing in Delhi.
Pradeep Bharathipura
Advocate, Bangalore
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133 Consultations
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The cost for drafting and file the complaint is 33000/- 

Feel Free to call
Nadeem Qureshi
Advocate, New Delhi
3539 Answers
131 Consultations
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You can consult any lawyer of this forum, contact them about drafting the application as well as thir fee for the purpose. 
T Kalaiselvan
Advocate, Vellore
14177 Answers
128 Consultations
5.0 on 5.0

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