WHY A FEW MEDICAL NEGLIGENCE CASES SUCCEED BEFORE THE CONSUMER FORUMS

 Why a few medical negligence cases succeed before the consumer forums is a burning question of the day and consumers apprehend- Doctors do not give opinion against their fellow doctor. There is a lot of hue and cry among the consumers that they lack support from the doctor fellows who are reluctant to give expert opinion against their colleagues which is the key evidence to hold a professional guilty and negligent and thus they fail to establish their case

                                    Medical literature is considered evidence which at times consumers are not able to produce before the forums/commissions and thus fail to put their strong foot in the pleadings

                                    I do not fully agree that the above reasons are the main causes for failure of medical negligence cases the fact is, out of total cases filed for medical negligence, many are actually not negligence cases but are:

O   Result of lack of post operative care

O   A notion that every treatment must bring positive results otherwise doctors is the cause.

O    Consumers are allured by misguiding factors that a huge amount in compensation can be claimed through some settlement with doctors

O   Poor drafting’s, half hearted efforts put in preparing pleadings and deficient required documents.

Most of such cases are filed without any preparation just with the notion in the mind that their duty is to narrate the facts and allege negligence; rest of the things should be taken care by the court. It is true that engaging advocates is not essential for the consumers but it being a technical area, really requires a good drafting .It is not because the doctor’s advocates can do miracle to the case and consumer cannot plead their case well. No, consumers must bear in mind that advocates can interpret the law in their favor but certainly cannot change the facts and law, hence. There is absolutely no reason for the consumers to get dishearten. For giving full facts in chronological order, good drafting is the first requirement. Unfortunately in our country, poor consumers are not in the position to shell out more money after they have lost their battle in fighting with the ailment .More so, consumer   think, consumer courts can take care of the things once they have filed the case Yes, taking care of the things are really made possible by the forums where washing machine is to be replaced, electricity connection is to be restored -.these things are settled even at the stage of first appearance of the parties. But such cannot be the case in medical negligence matter.  Active participation with full data and documents are not made available in most of the cases.

                                   At times patient has  pre-conceived notion in the mind  that once doctor has  charged a huge amount and prescribed costly medicines, ailment must get cured irrespective of the fact that  they approach the doctor when disease has crept deep into the body. Not only that ,there are many other factors like old age ,patient having high BP problem or diabetes due to which certain medicines cannot be given which could otherwise be more effective. And bring speedy recovery. Medical practitioner is not an insurer and is not to be blamed every time something goes wrong in treating the patient as held by the Supreme Court in number of cases

                                   Now coming to the question of expert opinion, it is true that expert opinion is the key evidence in medical cases and its weight age can in no way be ignored because it is the medical man who can spell out what went wrong while treating the patient. But expert opinion is only possible if relevant papers are complete. If sequence of facts, medicines prescription and history sheet, discharge summery etc are not available by any reason, no opinion can be made out of half papers and this is also found a big drawback for failure of the case .It is not the patient who is always asked to bring expert opinion It is the redressal agency also who send papers for expert opinion from Govt Hospitals and even from medical associations. At times, medical association have also given opinion unfavorable to their fellow doctors and terminated their license for several weeks or months. Further, regarding reluctance of doctors to give opinion against doctor, it is the way and manner which matters as to how the opinion is sought. The basic question can be –specify the disease, sequence of facts and ask for expert opinion as to what are the possible methods of treatment under the circumstances as per the norms of medical practice referring to the medical literature Let the question be general, it is the court to apply the general opinion to the specific case and hold whether the doctor gave the correct treatment or not It should be an opinion on a particular subject supported by medical literature. This practice is being followed by the redressal agencies and even where consumer and opposite parties both have arranged expert opinion, court on its own has asked for third opinion from reliable sources. So, it is the consumer to become more active and help the court by providing relevant papers.

                                   Similar is the situation in medical literature matter .There are articles referred from various medical journals before the redressal agencies in  order to support their act by the doctors.  Some of them are just articles, views, may not be established and recognized practice or accepted norms under the medical science. But some references are from set and recognized norms and accepted practice. Consumer can always submit their rebuttal if feel so by producing different views on the subject which they actually fail and is not always possible for them to do so. Consumer forums do scrutinize them and decide the weight age they have to give to the produced literature and as to whether the referred material is just views or they are established and recognized practice. Hence we suggest, consumer must plead their case with full force and should not shirk in making request to the forum for warranting expert opinion from independent agency. It is the consumer who is to make use of court machinery and plead judiciously in their favor.  The cases which failed till Apex courts for want of expert opinion cannot be rectified because the facts cannot be changed in appeals /revisions.  At times due to deficient papers, expert opinion could not be obtained even by the courts. So the failure is not always for the absence of expert opinion but for no initiative to get favorable expert opinion. Expert opinion has its own merit points, may it be medical field, technical line, legal or scientific area. If leg imputation is said to be due to negligence of doctor ,some medical expert has to say that something went wrong due to a particular act of the treating doctor and that particular act is to be pin-pointed which he should not have done as per the practice in medical line. The fact is that medical negligence cases do succeed very strongly where linking papers are complete. Courts have gone to the extent of warranting records from the hospitals. Hospitals are also asked by the consumer courts to disclose the name of the treating doctor if not known to the complainant and made the doctor party even if complainant has not made him initially.

                                                 In number of cases patients are successfully operated but during the post operative cares, unfortunately under unhygienic environment, infection creeps into the body and causes damage. Patient really does not understand what has gone wrong and under frustration blames doctor

                                                   This is also observed that sometimes patient hides certain material facts from the doctor which if known to the doctor, he could have chosen another method of treatment and this is also possible that having not known about the fact which is relevant for the treatment, he gives a treatment which badly harms the patient. There is a unique case relevant to be referred her to understand the situation. The case was filed by a retired doctor from defense on behalf of his wife alleging the doctor for negligence while doing plaster surgery on the breast of his wife which was said to be small in size in compare to the other breast .Patient wanted it to be made of equal size and it was just a cosmetic surgery .Surgery was performed by inserting/implanting artificial breast to the short size and both the breasts were made of equal size successfully. After some time complainant complained about pain and irritation which gradually became unbearable. After a lot of discussions, allegation and counter allegation the fact came on the surface that the lady had undergone cancer operation on the breast sometimes ago which made one breast smaller. As per the medical advice, for doing another surgery on the same place, dead tissues are to be revived first by applying suggested medicines and then surgery could be performed In this case the padding which was stuffed in the breast was not the correct padding under the circumstances as the actual fact of cancer operation was not known to the treating doctor. This was a case fought to the tooth and nail by a person who himself was a doctor and had plenty of literature but failed.

                                      To conclude our discussion, we may say doctor’s duty is to bring a diseased person at ease position but there are number of factors which play against the health ,may it be age factor, person’s body discipline and inner systems conditions which make the medicines effective or  ineffective. But consumer’s apprehension of failing the case is baseless. It’s a need of the day that consumer must be alert and vigil in collecting the relevant documents at every stage during the treatment itself for their own knowledge and satisfaction. We do not find any reason for consumer to be shaky .Medical negligence case can be very well won if dealt with it carefully.

                                                      

 

 

 

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