legal recourse

PATIENTS SAFETY… THE FIRST CONCERN

DOCTORS ARE NOT INFALLIBLE

EVERY MISTAKE IS NOT NEGLIGENCE

COURTS AND LEGAL RECOURSE IS NOT THE ONLY OPTION

PATIENTS SAFETY… THE FIRST CONCERN

DOCTORS ARE NOT INFALLIBLE

EVERY MISTAKE IS NOT NEGLIGENCE

COURTS AND LEGAL RECOURSE IS NOT THE ONLY OPTION

Initiating Legal action against health care provider

Initiating Legal action against health care provider

TAKING LEGAL RECOURSE

Accidents do happen. All mishaps are unfortunate but only some are because of medical negligence

If possible, take an independent opinion before coming to conclusion of medical negligence.

Give an opportunity to the doctor/hospital to explain their side.Think rationally, not emotionally– one false case can demoralize

a good doctor for life. If still, you feel that the doctor/hospital is guilty, be prepared to

take your case to its logical conclusion.

Don’t allow emotional outbreak take over..

Ransacking hospitals or attacking doctors CAN put some on else’s life in danger.

There is a law which empowers police to arrest the relatives and put them behind bars for this offence.

It can reflect badly on your case later.

1. Criminal court or police: Gross negligence is extremely rare and difficult to prove

2. Consumer Court for compensation/ damages: Correct forum to approach

3. Maharashtra Medical Council ( disciplinary action): Only if they ethical issues are involved

What are the options?

Preparation for legal recourse

Collect the certified copies of all the papers from the healthcare provider and mark them chronologically.

You do not need the originals for this.Read , understand what has gone wrong.Find out whether these are known complications or no.Take help of independent professionals if need be.

Choosing a Lawyer

Referral of friends, relatives, organisations. Practicing in this field requires aptitude, inclination and

motivation to go the extra mile The conference- remember you have to tell all relevant facts,

written brief helps, carry all papers and let him decide the relevance.

Understand the limitations, achievable targets and timeline.

In consumer courts you do not necessarily need a lawyer to represent you.

You can your self do it. You can appoint an authorized representative.

Be aware of lawyers who try to strike a deal of taking percentage of award from you. That is not legal in India.

Be aware of doctors who may instigate for their internal professional rivalry

Understanding stages of proceedings

ComplaintWritten statementRejoinderEvidenceJudgement

Heirarchy of consumer courts

District forumState forumNational forum

Quantum of compensation decides the forum.Lawyers fees may rise when you are going to

higher forumMyths: “Ask for more; you will get something!”Truth: It may send derogatory signal.

Expert for evidence: difficulty in finding one

It is hard to find an expert to depose as witness in the court.

Experts may easily find faults, mistakes, errors in hind sight but it may be difficult to call it as “negligence.”

Is opinion of government doctor required?

Jacob Mathew case: In criminal prosecution :yes.Martin F. D'Souza vs Mohd. Ishfaq: Rule extended to allV. Kishan Rao Versus Nikhil Super Speciality Hospital: Role restricted to criminal cases only.

BEFORE YOU GO TO THE POLICE/COURT

Criminal prosecutions are normally for punishment and not compensation. The standard of proof to establish your case is that of gross negligence, which is rarely the case, hence high rate of acquittal.

Advisable to pursue consumer disputes since compensation is awarded. Several instances of hospitals and doctors having to cough up hefty amounts of compensation.

Need for a non-adversarial alternate dispute resolution mechanism which is where Patient Safety Alliance can play a role.

YOUR RIGHTS IN COURT

RIGHT TO BE HEARD

RIGHT TO BE ALLOWED REPRESENTATION

RIGHT TO CERTIFIED COPIES

YOUR RIGHTS IN POLICE STATION

RIGHT TO A COPY OF F.I.R. IF YOU ARE COMPLAINANT RIGHT TO GET YOUR DOCUMENTS ACKNOWLEDGED RIGHT TO HAVE YOUR STATEMENT EXPLAINED IN YOUR

LANGUAGE AND A COPY OF IT. RIGHT TO ACCIDENTAL DEATH REPORT (ADR) RIGHT TO INSIST FOR A REPORT FROM EXPERT PANEL IF GROSS

NEGLIGENCE RIGHT TO CHALLENGE POLICE REPORT

SETTLE IT … OFFICIALLY

Consent terms/Settlement Agreement in Consumer Court Compoundable offences and non-compoundable offences. Settlement at Appellate stage …in fact at any stage ! Don’t let egos get the better of you. Focus on the larger picture

Dream role of Patient Safety Alliance

To empower patients to understand their rights in a health care unit /clinic

To establish a healthy dialogue between the patient community and medical fraternity

To act as an alternate dispute redressal mechanism to prevent escalation of disputes

ASHISH S. CHAVAN, ADVOCATE

THANK YOU !