Sunday Live: Q&A 27.08.2023
Question 1.
What legal action can be taken under the facts explained in Medical negligence case?
Mr Bidhan Bouri, Bankura Calutta Ph 967932233
Facts;
1. Had Head Brain cancer (grade-2)After recliation & Chemo therapy,Doctor verbally advised and promise that cancer can be cured by immunotherapy called ‘Dendritic cell immune therapy’
2. Prescribed 6 dose, then 3 dose but cancer spreading the whole body after 9 dose
3. Paid more than 5 lakh, complaints about wrong treatment but he gets Doctors warning legal notice
Reply by doctor through legal notice
a) Treatment given with consent after explaining that effects on different bodies shown in different manner
b) Client discontinued treatment after 9 dose without advice
c) Therapy has proved effects on many patients
Answer.
Need to understand a few things
First point; was there any wrong diagnosis said by any expert? If no, No action.
Second point; is this therapy recognised under medical science or just a known treatment in the field of Medical established norms .If so, no negligence even if it does not work as per expectations
Third Point; did you discontinue treatment without advice? If so then also no legal action
Fourth point; was the money charged fraudulently?
Fifth point; Expert opinion as to whether spreading grade-2 with this speed is because of therapy or otherwise possible
Question.2. (Connecting matter explaining law)
When there can be a case of Medical Negligence and when Not (Six Points)
1. When doctor is negligent
!) Damage to organ due to negligence
!!) Wrong treatment due to wrong diagnosis
!!!) When treatment not chosen as per accepted and established norms / medical research/available medical literature.
2. When doctor is not negligent
!) If five methods available for treatment, one chosen, doctor not negligent
!!) Doctor not guarantor for curing the ailment.
!!!) Error of judgement different from wrong diagnosis
3. Three steps to be observed by the doctor :
!) To decide whether he has to take up the case or not.
!!) If taken up the case, he is to decide what treatment is to be given.
!!!) Whether the treatment given as per the diagnosis made.
4. Complaint for deficiency in Paramedical services
!) Money receipt if refused
!!) Prescription or case history if refused on request
!!!) Discharge summery or test reports when not provided
!V) Equipment’s short causing damage to patient or interrupt medical services
V) Infrastructure not up to mark
V!) Staff, doctors, nurses not available
5. Theory of res ipsa loquitur [ a thing speaks of itself]
!)Where deficiency is obvious like removal of wrong lib , performance of operation on wrong patient , giving injection without allergic test, use of wrong medicine or leaving swabs or other items inside the body during operation ,in such a situation there no need to further prove the negligence and this theory is recognized as res ipsa loquitur
6. Payment theory
!) Where medical services are rendered by receiving payment as part of the terms and conditions of the services, this would amount to rendering services as defined under the Consumer Protection Act and patient is a consumer for filing case of medical negligence before the Consumer Forum
!) All private hospitals, clinics, Doctors are service providers when receive payment.
!!) All charitable hospital, clinics are service providers when hospitals/clinics are funded by some persons in charity.
!!!) All Government hospitals are service providers when receive money from employer for providing medical facility to their employees.
!V) All government hospitals are service providers if they receive money from insurance company and not from the patient
V) All Government hospitals are service provider if receive payment from some private persons for providing private services but not receiving from all patients.
V!) Government hospital is not a service provider if not charging from any one
Question -3
What action suggested under these circumstances?
Advocate Sagar Rohtagi in case of Madhu Aggrawal v/s Sampurna Plantation Pvt Ltd at Hardwar Uttrakhand Ph 9654886608
Ex parte order by District Commission
In execution, Recovery Certificate issued, Nothing done by DM,writ before Chandigarh HC for directions to DM for compliance.one such order passed by Delhi HC in similar case
Answer:
• Wait for order by HC.
• You have choice to go back to Consumer Commission for compliance at Commission itself and surrender recovery certificate ,also withdraw writ from HC if feel it was longer way
• Can also go to nearby civil court for compliance of the District Commission order
Question 4
Can two members issue Boilable warrants in execution of Consumer Commission order?
Advocate Madhuri Lata Ph 9490124760
Facts :
Quorum sitting with two Members without President
Proof of service personally filed before commission
Complainant remained absent on the day proof of service filed
Can two Members issue Bailable warrants against OP? Any problem in such order?
Answer
Yes, absence of complainant is is not a good thing, commission could dismiss application default
In the matter of Execution petitions, commissions are given power of First class magistrate which are exclusive for execution and not for other proceedings before the commission .Execution of order is criminal proceedings and any order can be passed by President unless one of the members is given power by notification to act as President on his behalf
Fact of complainant absent and President absent, order will not be good before the eyes of law it being criminal procedure