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medeforum india

  1. 1. 033 3263
  2. 2. ABOUT USRespected Dr. / Sir,This is to inform you that we are an established, well-known,reliable & 12 years experienced organization in the field of IndemnityInsurance that gives full legal protection to Doctors & MedicalEstablishments arising out of professional “Error or Omissions” &Negligence. We provide Professional Indemnity to Medical Professionalsand Medical Establishments and have a panel of renowned lawyers allover India who defend our Doctors & Medical Establishments. We takeover the entire responsibility from the time you received a notice /summon from the Court / District Consumer Redressal Forum, whichincludes emergency legal support and assistance, appropriate legaladvice and counselling, drafting of reply against any complaint receivedby
  3. 3. the medical practitioners as well as the medicalestablishment from Medical Council of India or from anyother Judicial or Quashi – Judicial Authority and / orForum as well as legal notices and most importantlyrendering competent legal support in legal cases fieldbefore the Consumer Disputes Redressal Forums, StateConsumer Disputes Redressal Commissions, other Civiland Criminal Courts, High Courts, National ConsumerDisputes Redressal Commission and also Supreme Courtof India. We also give legal support for the criminal cases.Finally, we take care of all Legal expenses includes allpayments to lawyers and court deposit money for furtherappeal to Higher court i.e. you are not required to bear anyexpenses means the entire procedure is CASHLESS.
  4. 4. It gives us pleasure to welcome you in this organization(MEDEFORUM) with several years of experience become one ofIndia’s leading third party administrators, with a reputation forflexibility, innovative service, outstanding customer service, andother unique advantages in the Indemnity Insurance Sector.Currently administer benefited for more than 2.5 million membersnationwide. The clients range from individual Doctor & Hospitals /Nursing Homes. MEDEFORUM (Medical Defense Forum of India) istied up with all the agent of Nationalized Insurance Companies suchas The National Insurance Company Ltd., The New IndiaAssurance Company Ltd., The United India Insurance Company Ltd.& The Oriental Insurance Company Ltd.
  5. 5. N.B.:- Enclosed please find the following services on the indemnityfront for you ready reference.Patient Liability Insurance & Legal Services Protection form LegalHazards arising out of the error, omission & negligence during thetreatment of a patient. They can go to Consumer Court & CriminalCourt.Insurance Coverage from United India Insurance Company Ltd. withLegal Service by eminent Lawyers.Total Cashless Service. All payments will be made byMEDEFORUM.Fill up the Insurance Form, Issue a crossed cheque /Demand Draft in favor of MEDEFORUM.You will receive through Courier:
  6. 6. 2) MEDEFORUM Executive will collect theLegal Notice from your place and get theVakalatnama, signed.3) MEDEFORUM Legal Dept. studies thecase and forwards the same to our LocalLawyers.4) MEDEFORUM will take the entireresponsibly of the legal proceeding and dayto day update the total Defence Co-ordination between You, Lawyers and theCourt.1) When you received a legal notice from consumerforum or any other court. Call our 24x7 help line
  7. 7. WHAT IS MEDICAL NEGLIGENCE?Before discussing medical negligence, it would be in order to understand the conceptofnegligence as such.Negligence may be defined as the “breach of a duty caused by the omission to dosomething which a reasonable man, guided by those considerations which ordinarilyregulate the conduct of human affairs would do, or doing something which a prudentandreasonable man would not do”. A shorter definition is that “negligence as a tort is thebreach of legal duty to take care which results in damage, undesired by the defendanttothe plaintiff”. The definition involves three constituents of negligence: (1) A legal dutyto exercise the due care on the part of the party complained of towards the partycomplaining the former’s conduct within the scope of the duty; (2) Breach of the saidduty; (3) consequential damage.
  8. 8. As regards medical negligence, the legal position has been described in severalleadingjudgments. Some of these are given below.1—In the leading case Bolam v. Friern Hospital Management Committee [(1957) 2AllER, wherein judge Mc Nair J. has stated as follows: "………….. where you get asituation which involves the use of some special skill or competence, then the testwhether there has been negligence or not is notthe test of the man on the top of a Clapham omnibus, because he has not got thisspecial skill. The test is the standard of the ordinary skilled man exercising andprofessing to have that special skill. A man need not possess the highest expertskill at the risk of being found negligent. It is well-established law that it issufficient if he exercise the ordinary skill of an ordinary competent manexercising that particular art.
  9. 9. Counsel for the plaintiff put it in this way, that inthe case of a medical man, negligence means failure to act in accordance with thestandards of reasonably competent medical men at the time. That is a perfectlyaccurate statement, as long as it is remembered that there may be one or moreperfectly proper standards; and if a medical man conforms with one of thoseproper standards then he is not negligent. A doctor is not guilty of negligence if hehas acted in accordance with a practice accepted as proper by a responsible bodyof medical men skilled in that particular art. Putting it the other way round, adoctor is not negligent, if he is acting in accordance with such a practice, merelybecause there is a body of opinion that takes a contrary view. At the same time,that does not mean that a medical man can obstinately and pig-headedly carry onwith some old technique if it has been proved to be contrary to what is reallysubstantially the whole of informed medical opinion."
  10. 10. 2-- The Supreme Court in Laxman v. Trimbak AIR 1969 SC 128, held:"The duties which a doctor owes to his patient are clear. A person who holdshimself out ready to give medical advice and treatment impliedly undertakes thathe is possessed of skill and knowledge for the purpose. Such a person whenconsulted by a patient owes him certain duties viz., a duty of care in decidingwhether to undertake the case, a duty of care in deciding what treatment to give ora duty of care in the administration of that treatment. A breach of any of thoseduties gives a right of action for negligence to the patient. The practitioner mustbring to his task a reasonable degree of skill and knowledge and must exercise areasonable degree of care. Neither the very highest nor very low degree of careand competence judged in the light of the particular circumstances of each case iswhat the law requires.”
  11. 11. 3—In Achutrao Haribhau Khodwa v. State of Maharashtra [AIR 1996 SC 2377], theSupreme Court said--"The skill of medical practitioners differs from doctor to doctor. The very nature of theprofession is such that there may be more than one course of treatment which may beadvisable for treating a patient. Courts would indeed be slow in attributing negligence onthe part of a doctor if he has performed his duties to the best of his ability and with duecare and caution. Medical opinion may differ with regard to the course of action to betaken by a doctor treating a patient, but as long as a doctor acts in a manner which isacceptable to the medical profession and the Court finds that he has attended on thepatient with due care skill and diligence and if the patient still does not survive or suffersa permanent ailment, it would be difficult to hold the doctor to be guilty of negligence."4—In Spring Meadows Hospital & Anr. Vs. Harjol Ahluwalia & Anr., (1998) 4 SCC39 at 47, the Apex Court has specifically laid down the following principles for holdingdoctors negligent:
  12. 12. “Gross medical mistake will always result in a finding of negligence.Use of wrong drug or wrong gas during the course of anaesthetic willfrequently lead to the imposition of liability and in some situations eventhe principle of res ipsa loquitur can be applied. Even delegation ofresponsibility to another may amount to negligence in certaincircumstances. A consultant could be negligent where he delegates theresponsibility to his junior with the knowledge that the junior wasincapable of performing of his duties properly. We are indicating theseprinciples since in the case in hand certain arguments had been advancedin this regard, which will be dealt with while answering the questionsposed by us.”
  13. 13. 15. The breach of duty may be occasioned either by not doing something which areasonable man, under a given set of circumstances would do, or, by doing some actwhich a reasonable prudent man would not do.16. So far as persons engaged in Medical Profession are concerned, it may be statedthatevery person who enters into the profession, undertakes to bring to the exercise of it,areasonable degree of care and skill. It is true that a Doctor or a Surgeon does notundertake that he will positively cure a patient nor does he undertake to use thehighestpossible degree or skill, as there may be person more learned and skilled than himself,but he definitely undertakes to use a fair, reasonable and competent degree of skill.Thisimplied undertaking constitutes the real test, which will also be clear from a study andanalysis of the judgment in Bolam v. Friern Hospital Management Committee (1957) 2All ER 118, in which, McNair, J., while addressing the jury summed up the law asunder.
  14. 14. "The test is the standard of the ordinary skilled man exercising andprofessing to have that special skill. A man need not possess the highestexpert skill; it is well established law that it is sufficient if he exercisesthe ordinary skill of an ordinary competent man exercising that particularart. In the case of a medical man, negligence means failure to act inaccordance with the standards of reasonably competent medical men atthe time. There may be one or more perfectly proper standards, and if heconforms with one of these proper standards, then he is not negligent".17. This decision has since been approved by the House of Lords in Whitehousev.Jordan, (1981) 1 All ER 267 (HL); Maynard v. West Midlands Regional HealthAuthority, (1985) 1 All ER 635 (HL); Sidaway v. Gethlem Royal Hospital, (1985) 1AllER 643 (HL); Chin Keow v. Govt. of Malaysia, (1967) 1 WLR 813 (PC).
  15. 15. 18. The test pointed out by McNair, J. covers the liability of a Doctor in respect of hisdiagnosis, his liability to warn the patients of the risk inherent in the treatment and hisliability in respect of the treatment.19. This Court in Dr. Laxman Balakrishna Joshi v. Dr. Trimbak Bapu Godbole, AIR1969 SC 128, laid down that a Doctor when consulted by a patient owes him certainduties, namely, (a) a duty of care in deciding whether to undertake the case; (b) a dutyofcare in deciding what treatment to give; and (c) a duty of care in the administration ofthat treatment. A breach of any of these duties gives a cause of action for negligencetothe patient.20. The principles were reiterated in A.S. Mittal v. State of U.P., AIR 1989 SC 1570, inwhich wide extracts from that judgment were made and approved”.
  16. 16. 40. Negligence has many manifestations - it may be active negligence, collateralnegligence, comparative negligence, concurrent negligence, continued negligence,criminal negligence, gross negligence, hazardous negligence, active and passivenegligence, wilful or reckless negligence or negligence per se, which is defined inBlacksLaw Dictionary as under :Negligence per se: Conduct, whether of action or omission, which maybe declared and treated as negligence without any argument or proof asto the particular surrounding circumstances, either because it is inviolation of a statute or valid municipal ordinance, or because it is sopalpably opposed to the dictates of common prudence that it can be saidwithout hesitation or doubt that no careful person would have been guiltyof it. As a general rule, the violation of a public duty, enjoined by law forthe protection of person or property, so constitutes".
  17. 17. 6-- In Jacob Mathew Vs. State of Punjab (2005)6 SCC 1, while dealing with thetests tobe kept in mind by the courts in dealing with cases of medical negligence, theHon’bleSupreme Court observed as follows:• “…So long as it can be found that the procedure which was in fact adoptedwasone which was acceptable to medical science as on that date, the medicalpractitioner cannot be held negligent merely because he chose to follow oneprocedure and not another and the result was a failure.”• Indiscriminate prosecution of medical professionals for criminalnegligence is counter-productive and does no service or good to thesociety.
  18. 18. Conclusions summed upWe sum up our conclusions as under:-(1) Negligence is the breach of a duty caused by omission to dosomething which a reasonable man guided by thoseconsiderations which ordinarily regulate the conduct of humanaffairs would do, or doing something which a prudent and reasonable manwould not do. The definition of negligence asgiven in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P.Singh), referred to hereinabove, holds good. Negligencebecomes actionable on account of injury resulting from the actor omission amounting to negligence attributable to the personsued. The essential components of negligence are three: duty,breach and resulting damage.
  19. 19. (2) Negligence in the context of medical profession necessarily callsfor a treatment with a difference. To infer rashness ornegligence on the part of a professional, in particular a doctor,additional considerations apply. A case of occupationalnegligence is different from one of professional negligence. Asimple lack of care, an error of judgment or an accident, is notproof of negligence on the part of a medical professional. Solong as a doctor follows a practice acceptable to the medicalprofession of that day, he cannot be held liable for negligencemerely because a better alternative course or method oftreatment was also available or simply because a more skilleddoctor would not have chosen to follow or resort to that practiceor procedure which the accused followed. When it comes to thefailure of taking precautions what has to be seen is whetherthose precautions were taken which the ordinary experience ofmen has found to be sufficient; a failure to use special orextraordinary precautions which might have prevented the
  20. 20. particular happening cannot be the standard for judging thealleged negligence. So also, the standard of care, whileassessing the practice as adopted, is judged in the light ofknowledge available at the time of the incident, and not at thedate of trial. Similarly, when the charge of negligence arises outof failure to use some particular equipment, the charge wouldfail if the equipment was not generally available at thatparticular time (that is, the time of the incident) at which it issuggested it should have been used.(3) A professional may be held liable for negligence on one of thetwo findings: either he was not possessed of the requisite skillwhich he professed to have possessed, or, he did not exercise,with reasonable competence in the given case, the skill which he
  21. 21. did possess. The standard to be applied for judging, whetherthe person charged has been negligent or not, would be that ofan ordinary competent person exercising ordinary skill in thatprofession. It is not possible for every professional to possessthe highest level of expertise or skills in that branch which hepractices. A highly skilled professional may be possessed ofbetter qualities, but that cannot be made the basis or the yardstick forjudging the performance of the professionalproceeded against on indictment of negligence.(4) The test for determining medical negligence as laid down inBolams case [1957] 1 W.L.R. 582, 586 holds good in itsapplicability in India.
  22. 22. did possess. The standard to be applied for judging, whetherthe person charged has been negligent or not, would be that ofan ordinary competent person exercising ordinary skill in thatprofession. It is not possible for every professional to possessthe highest level of expertise or skills in that branch which hepractices. A highly skilled professional may be possessed ofbetter qualities, but that cannot be made the basis or the yardstick forjudging the performance of the professionalproceeded against on indictment of negligence.(4) The test for determining medical negligence as laid down inBolams case [1957] 1 W.L.R. 582, 586 holds good in itsapplicability in India.
  23. 23. (5) The jurisprudential concept of negligence differs in civil andcriminal law. What may be negligence in civil law may notnecessarily be negligence in criminal law. For negligence toamount to an offence, the element of mens rea must be shownto exist. For an act to amount to criminal negligence, the degreeof negligence should be much higher i.e. gross or of a very highdegree. Negligence which is neither gross nor of a higher degreemay provide a ground for action in civil law but cannot form thebasis for prosecution.
  24. 24. (6) The word gross has not been used in Section 304A of IPC, yet itis settled that in criminal law negligence or recklessness, to beso held, must be of such a high degree as to be gross. Theexpression rash or negligent act as occurring in Section 304Aof the IPC has to be read as qualified by the word grossly.(7) To prosecute a medical professional for negligence undercriminal law it must be shown that the accused did something orfailed to do something which in the given facts andcircumstances no medical professional in his ordinary sensesand prudence would have done or failed to do. The hazardtaken by the accused doctor should be of such a nature that theinjury which resulted was most likely imminent.
  25. 25. Is Medical Negligence covered under Consumer ProtectionActTraditionally, people in India have had high regards fordoctors and other members of the medical profession. It is forthis reason that many people unquestioningly accept whatever the doctor says. This created a situation where manytreacherous doctors and sometimes quacks conductedthemselves without any regard for the patient’s safety. Thisresulted in many deaths and medical complications. Whenincidents like these began to rise, the Supreme Courtintervened and pronounced that medical profession andprofessional could also be tried under the ConsumerProtection Act (CPA), 1986. Though the Indian MedicalAssociation contested this decree, its plea was disqualified.
  26. 26. Besides this decree of the Supreme Court bringing themedical profession and professionals under thepurview of the CPA, there exists a provision under theIndian Penal Code – Section 304A which covers acts ofmedical professionals. According to this whoevercauses the death of the person (in this case a patient)due to negligence or a rash act, not amounting toculpable homicide, can be tried and suitably punishedwith imprisonment for 2 years or fine or both. Sections52, 80, 81, 83, 88, 90, 91, 92 304-A, 337 and 338 allcover the acts of medical malpractices.
  27. 27. Medical negligence under the Consumer Protection ActAcknowledging the fact that the human body is acomplex organization which can suffer from malfunctionthat can be difficult to diagnose correctly even byexperienced medical professionals, the CPA underlinesthat a medical professional can be held responsible incase he/she fails to diagnose the medical conditioncorrectly due to lack of knowledge, skills and care that isexpected of him.
  28. 28. Consequently a mistaken diagnosis cannot be consideredas a case of wrong diagnosis and due to this the consumerforum has sometimes ruled in favour of the doctorconcerned. But the failure to take care when such care hasto be exercised by a medical professional, does implicatethe professional under medical negligence making him/herliable for punishment.The term medical negligence assumes great significance inthis context. It is defined as – the failure to exercise rationalcaution and capability during diagnosis and treatment overa patient in accordance to the prevailing standards in forceat that point of time.
  29. 29. This has allowed a distressed patient who has reason tobelieve that he/she has been a victim of medicalnegligence, to move the consumer forum for prosecutionof the accused medical professional and seek a fairamount as compensation.Contrary to what used to be the norm until some yearsago, such a plaintiff in a case of medical negligence canexpect to get results from the Consumer Protection Actwithin a period of 3 years. To ease the burden of thepatient, the litigation process is kept quite simple in a CPforum.