Complete Guide : How to defense a medico-legal case by a doctor
When a legal notice is received or a consumer case alleging deficiency in service is filed against a doctor, it creates a lot of emotional disturbance as the reputation of medical professionals is built over years through sheer hard work, expertise, and skill acquired by strenuous training and investment over the years. Nevertheless, hospitals and doctors have to keep in mind that as per the decision of Supreme Court in a catena of cases, the medical profession is finally held to be covered and that there is no easy escape on technical grounds. They have to take care of the legal requirements and face the situation head-on.
One should not forget that it is very important to reply to a legal notice in a very thorough manner. A well-prepared reply will serve as the basis of a Written Statement to be filed in case a Consumer Complaint is instituted against the doctor and/or hospital. Quite often a well-prepared notice reply drives home the fact that the hospital and doctor will not succumb to pressure and speculative cases will be fought hard.
Our personal experience is that in a good number of cases, a systematic notice reply achieves the desired result. In case an unjustified, false, or speculative consumer case is filed alleging deficiency in service rendered by a hospital or a doctor, they have to take care of the requirements of the law such as the timely filing of a written statement, affidavit etc., and put up a good defense at the time of the hearing. Most importantly, case history, indoor case papers, clinical records, report of the investigation if any, affidavit of dealing doctors, X-rays, test results etc., will be of immense help.
Special attention has to be given to expert evidence of a qualified and independent medical professional. It is most important to keep in mind that the complainant has to establish that the manner and nature of treatment (including pre- and post-operative care) were so deficient that it falls short of the skill and /or standard expected from average medical practitioners and not that of a highly qualified and exceptionally gifted person.
While coming to such a conclusion, a Consumer Forum has to keep in mind the qualification, infrastructure, and facilities available at such a place. The defending doctor or hospital has to appeal the Consumer Forum about the accepted practice of treatment, negligence on the part of the patient in availing treatment promptly, or following medical advice etc. Needless to mention medical professionals need to maintain a good relationship with their brothers in the profession. Attention has to be given to corroborative medical literature on the subject.
Lastly, relevant case law on the subject will also be helpful. In case a hospital or a doctor finds itself or himself in a situation where it is very likely such an act falls under the category of medical negligence, say res ipsa loquitur or negligent per se, e.g., a case in which a wrong limb or organ was treated, operated, amputated, or infected blood was given or qualification was wrongly written etc., such a case does not need any special evidence to establish and it is advisable that such a claim is compromised after taking the insurer into confidence. Furthermore, the doctor and/or hospital are entitled to engage the services of a lawyer to represent them in the matter.
There is no denying the fact that prolonged litigation adversely affects the reputation of a doctor or hospital even though he/it eventually wins the case. The medical fraternity is concerned with safeguards against speculative and vexatious claims. While one can not deny the fact that there are genuine cases involving medical negligence, the issue that bothers the medical fraternity is that quite often the irreparable damage is caused to a doctor or a hospital on account of a large number of speculative complaints.
To summarize, a good defense that has to be put up by the doctor includes the following:
- Avail the services of a good lawyer. The doctor and /or hospital are entitled to engage the services of a lawyer to represent them in the matter.
- The timely filing of a written statement, affidavit, and all other documents as required.
- It is important to properly maintain case history, clinical records, affidavit of all the treating doctors, X-rays, laboratory test results, etc. which will be of immense help in supporting the doctor’s claim.
- Special attention has to be given to bring in the expert evidence of a qualified and independent medical professional. It is advisable to file an affidavit of the expert as well.
- The corroborative medical literature on the subject should be submitted.
- Relevant case law on the subject will also be helpful.
- Put up a good defense at the time of the hearing.
October 20, 2018