• Medical negligence

Hello Sir,
Thanks for your earlier advised for below question.
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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. 
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As per your advised 
1. i have drafted the complaint with the help of lawyer.
2. collected all the documents pertaining to treatment from hospital
3. send the complaint to the Delhi medical council, MCI and  to The Secretary, Health and Family Welfare Department

But i want to understand the Indian laws for mis-prescribing the 2 contrary medicines simultaneously on one prescription by the same doctor to the patient. (Medicine product monograph itself has the warning for serious infection if these 2 medicines given together)
and patient died after 3 days of these medicines...if we can prove it what will be the maximum punishment to the doctor?

Thanks
Asked 11 months ago in Civil Law from New Delhi, Delhi
1) complaint before consumer forum is for recovery of compensation and not punishment 

2) you have to file police complaint for medical
Negligence against hospital and doctors under section 304 A of IPC punishable with impriosnment for up to 2 years or fine or both 
Ajay Sethi
Advocate, Mumbai
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You have stated that you have secured the information/evidences pertaining to file a case for medical negligence.
You have also stated that you have drafted a complaint through a lawyer. This clearly indicates that you are contemplating to file a consumer complaint case with  jurisdictional consumer distress redressal forum .  The consumer forum will help you to fetch compensation to the loss due to medical negligence but has no power to punish the culprit doctor or hospital.
If you want the doctor or the hospital to be punished, you may lodge a criminal complaint against them for medical negligence  which caused the death of your daughter with the local police station. The police may register a FIR under section 304A IPC or any other suitable section which, if proved guilty, the accused may be convicted to undergo imprisonment varying from 2 years or more. 
As far as prescribing two medicines together, which has been prohibited in the label itself, is a clear indication for negligence and breaking the rule or law. The death of the patient due to this i a substantial evidence for violating the law. 
You may take up the case accordingly.  
T Kalaiselvan
Advocate, Vellore
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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. 
Negligence is the breach of a legal duty to care. It means carelessness in a matter in which the law mandates carefulness. A breach of this duty gives a patient the right to initiate action against negligence.

Persons who offer medical advice and treatment implicitly state and undertake to have the skill and knowledge to do as under:

1.	To undertake particular job.
2.	To decide whether to take a case or not ,
3.	To decide the treatment suitable for particular case
4.	To administer that treatment.
This is known as an “implied undertaking” on the part of a medical professional.However, no human being is perfect and even the most renowned specialist could make a mistake in detecting or diagnosing the true nature of a disease.

A doctor can be held liable for negligence only if one can prove that she/ he is guilty of a failure that no doctor with ordinary skills would be guilty of if acting with reasonable care. An error of judgment constitutes negligence only if a reasonably competent professional with the standard skills that the defendant professes to have, and acting with ordinary care, would not have made the same error.

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 anesthesia during, an operation or other kind of treatment, if it can be proved that the death was the result of malicious intention, or gross negligence. Before the administration of anesthesia or performance of an operation, the medical man is expected to follow the accepted precautions.

In such cases, the physician should be able to prove that he used reasonable and ordinary care in the treatment of his patient to the best of his judgment. He is, however, not liable for an error judgment. The law expects a duly qualified physician to use that degree of skill and care which an average man of his qualifications ought to have, and does not expect him to bring the highest possible degree of skill in the treatment of his patients, or to be able to guarantee cures.

When Does The Liability Arise In Case Of Medical Negligence?
The liability of a doctor arises not when the patient suffers injury but when the injury results due to the conduct of the doctor, which was below reasonable care. Hence once there exist a duty which has to be established by the patient, then the next step is to prove breach of such duty and the causation.

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.

Proof of Medical Negligence 

It has been held in different judgments by the National Commission and the Hon’ble Supreme Court that a charge of professional negligence against a doctor stood on a different footing from a charge of negligence against a driver of a vehicle. 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/ surgery.

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.

Even after adopting all medical procedures as prescribed, a qualified doctor may commit an error. The National Consumer Disputes Redressal Commission and the Supreme Court have held, in several decisions, that a doctor is not liable for negligence or medical deficiency if some wrong is caused in her/ his treatment or in her/ his diagnosis if she/ he has acted in accordance with the practice accepted as proper by a reasonable body of medical professionals skilled in that particular art, though the result may be wrong. In various kinds of medical and surgical treatment, the likelihood of an accident leading to death cannot be ruled out. It is implied that a patient willingly takes such a risk as part of the doctor-patient relationship and the attendant mutual trust.

So collect the best evidence and cop with arms then file suit 
Ajay N S
Advocate, Ernakulam
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You are wasting your time by making complaints to these authorities. None of these authorities have the sanction of law to award you any compensation or take penal action against them. You can file a lawsuit to claim compensation and also launch the criminal prosecution of the hospital and doctors which treated your daughter. It goes without saying that to prescribe a medicine which should not have been prescribed is an act of acute negligence, and thus punishable under the penal law of the land. The maximum punishment is 2 years. 
Ashish Davessar
Advocate, Jaipur
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449 Consultations
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1) if police refuse to register complaint of criminal negligence you can file private complaint under section 156(3) of CRPC to direct police to investigate and submit report 

2) rely upon opinion of other doctors that hospital and its doctors ought not to have prescribed line of medicines given on account of its adverse side effects . That doctor of hospital was grossly negligent in prescribing medicines given 

3) you should also complain to medical council against the negligent doctor and also move consumer forum 
Ajay Sethi
Advocate, Mumbai
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1224 Consultations
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1) The maxims can be used in your pleadings in the consumer complaint


2) The police will generally wash their hands with such irresponsible replies because they do not want to undertake risk in the technical matters which are within their purview.  They cannot understand the technical jargon involved in such complaints hence they try to pass on the baby.  It would be a surprise only when the police would be willingly support your cause and help you to fetch relief through law. 



3) You should pursue the case vigorously without losing your heart or get deviated from the main course of action, all the best.
T Kalaiselvan
Advocate, Vellore
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127 Consultations
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It is not res ipsa loquitur. Reading these maxims and doctrines is not going to help you in the court. If police does not register the FIR then you can file the criminal case directly in the court. 
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
5.0 on 5.0
In your case advise from expert  is needed about using of medicine in combined form. So first study the case and file  private complaint  before the court. If you want to punish the doctors file it in criminal court and want damages file it in civil court. 

Res ipsa loquitur is a Latin phrase that means "the thing speaks for itself".Negligence is conduct that falls below the standard established by law for the protection of others against an unreasonable risk of harm. In order to prevail in a negligence action, a complainant must establish by a Preponderance of Evidence that the defendant's conduct was unreasonable in light of the particular situation and that such conduct caused the plaintiff's injury. 
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
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1. It is a professional negligence on the part of the Doctor for which he should mitigate the loss,

2. File a complaint case before the local District Consumer Dispute Redressal Forum against the concerned doctor and Hospital alleging deficiency in service and unfair business practice claiming exemplary punishment in the form of payment of hefty amount towards mitigation of irreparable loss with interest and cost,

3. There are several such cases in India, like the case of Dr.Anuradha Saha case, wherein the Forum has given favourable order.

Krishna Kishore Ganguly
Advocate, Kolkata
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233 Consultations
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1. It is a professional negligence. It can not be proved that the doctor has purposely infused those two injections to cause harm or kill the child. So, no criminal case will lie in the instant matter,

2. With the evidence you have first file a complaint before the Medical Council and after that file a consumer case as suggested in my earlier post.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
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