Medical Negligence, as the name suggests is misconduct by a medical practitioner or doctor by the lack of providing enough care, thereby, resulting in the harm caused to the patient and thus a breach of a doctor’s duties.

Medical Negligence is a combination of two words i.e. ‘Medical’ and ‘Negligence’. Negligence means an act done recklessly by an individual which results in foreseeable damage to another. Negligence is an offense under the Indian Penal Code, Indian Contracts Act, Consumer Protection Act, Tort, etc.

How to Report Medical Negligence in India; Procedure

1. Procedure for Civil action in Consumer court:

Prior to initiation of any action, a victim of medical negligence must engage the services of a trained advocate, specializing in the field of consumer laws to ensure optimum representation and advice.

Issuance of Notice – the first and foremost step in bringing an action against a doctor for medical negligence is to issue a legal notice. Such a notice must state the dispute of the complainant and state the reliefs being sought. This enables the parties to know the other’s case and take action for resolution.

Determining the jurisdiction for filing a complaint – The Consumer Protection Act aides in deducing the pecuniary and territorial jurisdiction within which a complaint can be instituted as per the facts of each case. Pecuniary jurisdiction relates to the monetary value cases that can be maintained in a forum.

Opinion of Medical Practitioner – to maintain a successful case, it is imperative in matters of medical negligence, to obtain the expert opinion of a reputed medical practitioner fortifying the case set out. This helps in establishing a prima facie case for the complainant before the consumer commission. 

Filing of Complaint – The next step, upon failure of resolution at the pre-litigation stage, is to have a consumer complaint drafted by an experienced advocate. Once a complaint has been drafted, it is to be filed in the consumer commission of appropriate jurisdiction. The process of figuring out limitations

of the claim, court fees and of filing, etc can be done with the aid of an advocate.

Procedure for Criminal action:

The offense provided under 304A of the IPC is a cognizable offense, thus the police can file an FIR (First Information Report) or investigate even without express orders from the court on this behalf.

To initiate criminal action for medical negligence, a party must file a complaint to the appropriate police station or have it submitted online.

The judicial process can also be set in motion through Section 190 of the Code of Criminal Procedure by filing a complaint before a magistrate, for taking cognizance of the offense.

The Magistrate can either take cognizance and carry out an inquiry himself or direct the police to register an FIR as per Section 156(3) of the Code of Criminal Procedure.

Upon registration of FIR, the investigation shall be carried out by the police for collection of evidence, interrogation, and statement of accused as also scientific analysis. The police may also arrest the accused if deemed necessary.

If upon completion of the investigation, the police conclude that the offense under Section 304A is made out, a charge sheet shall be filed before the Magistrate.

Thereafter, arguments shall be set forth before the court on the framing of charges and the trial will continue.

Where should a Medical Negligence case be filed?

A consumer complaint seeking relief against a medical practitioner can be filed in one of the following forums provided under the Consumer Protection Act:

*National Consumer Disputes Redressal Commission

*State Consumer Disputes Redressal Commission

*District Consumer Disputes Redressal Commission

The appropriate forum for filing a complaint in the facts of each case shall depend upon the pecuniary and territorial jurisdiction of each commission.

Pecuniary Jurisdiction

District Commission – Amount not exceeding Rs. 1 Crore.

State Commission – Rs. 1 Crore to 10 Crore

National Commission – Amount over Rs. 10 Crore

Territorial jurisdiction is determined by the place where the opposite party resides or usually carries on business or personally works for gain.

Similarly, for initiating criminal proceedings against a doctor under Section 304A of the IPC , being a cognizable offense, you must approach the appropriate police station for registration of an FIR. Upon refusal to record an FIR, the aggrieved person may also send the substance of the information to the Superintendent of Police. The SP upon being satisfied that the information discloses the commission of a cognizable offense under Section 304A can investigate the case himself or direct a subordinate officer to do so. Similarly, an aggrieved person may also approach a magistrate as per Section 190 of the Code of Criminal Procedure for it to take cognizance and if required order registration of FIR under Section 156 (3).

Things you need to Collect / Documents Required for Medical Negligence case in India

1. Diagnosis by accused doctor/hospital

2. Medical prescriptions issued by the accused doctor/hospital

3. Medical Reports of tests conducted by the accused doctor/hospital

4. Documentary evidence of procedures and their results conducted by the accused doctor/hospital

5. Any other documentary proof of the victim being treated by the accused doctor/hospital and the duration of such treatment

6. The medical report of an independent doctor/hospital certifying the injury/harm/death caused to the victim of medical negligence

7. Medical Opinion of an independent doctor/hospital certifying that the harm/injury/death alleged is a direct result of medical negligence on part of the accused doctor/hospital

8. Copy of legal notice addressed to the accused doctor/hospital if any

9. Reply to the legal notice by the accused doctor/hospital, if any

10. Any other correspondence of relevance between the parties relating to the dispute

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