Firstly, in order to prove a case of medical negligence against a Doctor, the patient’s side has to prove the following -

1. Legal Duty to care
2. Breach of the duty by the Doctor
3. The Breach resulted in the injury

The following are some pointers pertaining to defense that will be beneficial for doctors –

• Firstly, the importance of medico-legal consultants and lawyers cannot be emphasized more. In the event of a case, it is critical to take professional advice and follow it.
• The notice of a consumer dispute should never be refused or rejected when it is attempted to be delivered by postal service. Refusal to accept the notice is considered deemed acceptance in law.
• The contentions advanced or the pleas made should be made at the first instance. This means that at the stage of responding to a legal notice, the help of professionals ought to be taken and the complete defense should be put forth.
• In the event that the medical treatment provided is completely free of charge, the patient doesn’t fall under the category of a “consumer” as defined by the law and therefore such a procedure cannot be resolved by the Consumer Court. This defense challenges the jurisdiction of the Consumer court to settle the dispute and should be raised at the first instance. It should be noted that such a defense will not prevent the aggrieved patient from pursuing other legal remedies.
• The defense should be well supported with the doctor’s credentials qualifications, training, experience, awards, expertise, etc along with attendance at various conferences, workshops, etc.
• Documentary support pertaining to the facilities at the hospitals of infrastructure, back-up support, etc should also be mentioned.
• Document Complainant’s own contributory negligence. Often the patient’s do not follow the medical advice fully, or delay the treatments and thereby contribute to the injury themselves. This can aid the defense to a large extent.
• In the event that there are inconsistencies between the notices sent, letters / emails of complaints and the actual case filed by the patient, the same should be specifically pointed out at the first instance.
• Provide documentary evidence pertaining to the difficulty or the complex technical nature of the medical procedure conducted and the inherent risks in them. This can also be done by providing affidavits from peers and other professionals to that effect.
• Provide evidence, documentary or otherwise of the circumstances of the case, i.e. emergency, lack of facilities, (in rural areas as rule of locality applies), lack of knowledge of the patient’s history, etc.
• Provide evidence (documentary or otherwise) of standard of care, precedents, SOP’s, etc of the Doctor or the Hospital.
• It is advisable to demonstrate that reasonable knowledge, skill and care (average that is expected of any professional skilled in the art) was exercised. Rely on standard medical textbooks and quote the same with attested photocopies.
• Produce evidence that the chain of causation leading to the injury was broken (novus actus interveniens). Or provide evidence that many other reasons outside the control of the doctor contributed to the damage.
• Ensure to appeal within the statutory limit in the event that an order is passed against you.
   

The above article is written by a medico-legal expert, Tejasvita Apte based in Pune.

Disclaimer- The information and views set out in this article are those of the author(s) and do not necessarily reflect the official opinion of M3 India. Neither M3 India nor any person acting on their behalf may be held responsible for the use which may be made of the information contained therein.