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