Apr 24,2019 | 10 min read

How to Sue a Hospital for Negligence or Malpractice?

Author: Advocate Praveen Kumar and Associate Runa Jasia

A hospital is a health care institution providing patient treatment with specialized medical and nursing staff and medical equipment. But it is not always about "health care," for a few hospitals, it is a business plan.  Medicine is a noble profession, and a practitioner must keep in his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is that the law requires. Though hospitals are often on the hook for incompetent care provided by employees like nurses and medical technicians, they usually are not responsible for a doctor's medical malpractice.

Negligent only if the medical practitioners do not observe the following:

o  Damage to an organ due to negligence.

o  Wrong treatment due to an incorrect diagnosis.

o  Money receipt or prescription or discharge summary or test reports when not provided.

o  When a treatment not chosen as accepted and established in medical norms /as per medical research/available medical literature.

o  The hospital can also be negligent if it is a case of non- availability of oxygen cylinder either if the hospital has failed to keep available a gas cylinder or because of the gas cylinder was found empty.

Indian society is experiencing a growing awareness regarding a patient's rights. This trend is discernible from the recent spurt in litigation concerning medical professional or establishment liability, claiming redress for the suffering caused due to medical negligence, vitiated consent, and breach of confidentiality arising out of the doctor/hospital-patient relationship.

Legal action can be taken against the hospital in several cases such as:

·      Charging extra fees for any medical treatment.

·      Treating any patient carelessly.

·      Not giving the required medication or equipment necessary for proper medical treatment.

·      Providing false hope and expectations.

·      Giving the wrong medicines or injections.

·      Providing wrong information or false information regarding the disease or the medical problem. 

·      Complaints about drug errors

·      Complaints about unnecessary or inappropriate surgery

·      treatment

·      Complaints about not getting treatment after condition changed

·      Complaints related to getting discharged from the hospital too soon

·      Complaints about incomplete discharge instructions and arrangements

·      Complaints about improper care or unsafe conditions

·      Complaints about hospital conditions

There are many cases in which one can file a lawsuit against the whole hospital. It depends on which category the case belongs. Patients and their families, weakened by grief and financial pressure, are lured by big corporate hospitals with this money, and sometimes they even accept it. 

Criminal Negligence

Section 304A of the Indian Penal Code, 1860, states that whoever causes the death of a person, by any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment for two years, or with a fine or both.

Consumer Protection Act

In the case of the Indian Medical Association vs. V.P. Shantha and Ors. (1995), the Supreme Court has held that service rendered to a patient by a medical practitioner (except where the services are provided free of charge to a patient), by way of consultation, diagnosis and treatment, both medicinal and surgical, fall under the ambit of the Consumer Protection Act, 1986.

The Medical Council of India (MCI) is a statutory body who shoulders the responsibility of establishing and maintaining high standards of medical education and recognition of medical qualifications in India. Find information about the Council, office bearers, organizational chat, acts, rules, amendments, etc. Anybody can complain or send a suggestion to the Medical Council of India (MCI).

The person who wants to file against any hospital can also send a mail to MCI or can also fill the required form available on their website. 

Steps to take legal against any hospital:

·      Make a complaint to the management of the hospital, officially, in writing, so that they may correct themselves immediately.

·      File a complaint with the local medical officer of the government as well.

·      Contact the state or Central Health Ministry which can address the concern.

·      Contact the Office of the Controller of Legal Metrology in the state either through a letter or an email.

·      Document the injury 

·      Request medical records from the hospital or the doctor

·      Collect all the medical bills and make a file. 

·      Determine who to sue

·      Do it quickly

·      Hire a lawyer and analyze the case with the lawyer. 

·      Prepare the lawsuit

·      Draft a complaint against the hospital

·      Ask the lawyer under which category/act the case will come.

·      It's important to attach all the medical documents which prove the point.

·      Collect witness, if possible.

·      Determine the damages

At some point or the other, the hospital might make an offer to settle the case. So, it is crucial for the patient to determine the value of his case. The patient should, then, consider all possible losses and harm that is stemming from the malpractice, including, past and future medical expenses, losses in wages, pain and, suffering, etc. Many states require the patients to jump through a few hoops before finally filing medical malpractice lawsuits. These requirements vary from state to state. A patient may have to file an affidavit of merit attested by a qualified medical expert that states the plaintiff has a valid case.


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