ADDRESS AT DOCTORS MEET:- IN UP STATE NURSING HOME ASSOCIATION ANNUAL CONFERENCE ON 12TH NOVEMBER, 2017 AT BAHRAICH-U.P

ADDRESS AT DOCTORS MEET:- IN UP STATE NURSING HOME ASSOCIATION ANNUAL CONFERENCE
ON 12TH NOVEMBER, 2017 AT BAHRAICH-U.P
By Manish Mehrotra, Advocate, Lucknow

Dear Doctor Friends,
It is indeed a pleasure for me to be back with you all again this year, and share with you some aspects of medical negligence law.
To every law student, or a person associated with legal field it is well known concept that law is dynamic, meaning thereby that it is always moving ahead developing, changing from time to time as per the needs of the Society.
I have, in almost in all my previous lectures and interactions with the doctor friends have concentrated to share the legal position. But this time I would rather like to share some of my practical experiences, which I have witnessed as a lawyer in Consumer Courts, particularly on some specific topics and they in fact will act as tips for you all to follow and may be avoid and prevent legal problems in future.
By now we all know that in the year 1996, after the decision of Supreme Court in the case of V.P. Shantha the concept of medical negligence litigation in Consumer Courts actively started and thereafter there has been a spate of litigation which the doctors and hospitals are facing in consumer courts.
The Statutory Law, by which the have doctors come in the purview of litigation is Consumer Protection Act, 1986. The words “deficiency in service” as contained in the provisions of Consumer Protection Act, 1986.  As occurring in section 2 of the Consumer Protection Act does not elaborate anything as to how and in what different circumstances a doctor or a hospital would be held liable for medical negligence or deficiency in service.  It is therefore all judge made law which is operating in the field, hence there is a huge variation in the legal opinion on myriad of topics, relevant to medical negligence over last 20 years.
It keeps changing every day and therefore it is a MUST for the doctors and hospitals to be regularly alive to the changes in the legal pattern because any development or change may immediately affect you either for the good or the bad. Hence these types of seminars and interactive programmes are most important to keep abreast and updated with the dos and don’ts which must be followed.
Hospital Records/Case Sheet/Prescriptions
In the backdrop of what I have stated above, my first experience which I would like to share with you all is that the relationship between a doctor and a patient starts with the prescription / initial documentation by whatever name you may call.  The court also pays much attention on it.  The problem areas as per my experience, therefore on this issue are, as far as the prescription / first document executed by a doctor are illegibility, incomplete information, and occasionally incoherent diagnosis. 
Your prescription/first admission card is the map of details which can prove several aspects and save you from unnecessary litigation and harassment in future.  firstly, history should be properly recorded, secondly the problem with which the patient has reported to you should be clearly recorded.  The tests which are necessary to be performed must be shown clearly, diagnosis should be deductible from that document itself and the course of action whether the prescription of medicines, advice of surgery whatsoever, it is, should be clearly deductible.
There are recent court judgments which make it obligatory upon a doctor or a hospital to maintain and submit proper and complete hospital records before the consumer court at the time of any litigation, meaning thereby that the courts are considering the hospital records as a very important piece of evidence in coming to a conclusion whether a case can be said to be that of medical negligence or whether the doctor can be absolved if he has followed the standard medical norms in the course of treatment.
Another example on this topic, I would,  not be naming the doctor,  but just about 10 days back I, was arguing a case on behalf of a very eminent lady doctor in the UP-State Commission and suddenly a query was raised by the court to me that in para 10 of the complaint petition the complainant has said that post-operative the treating doctor disappeared from the scene due to which it became a case of lack of care and ultimately the consequence which were alleged by the complainant.  The court asked me for its response and evidence on record to prove that the main treating doctor can be shown to be present for treating the patient.  Obviously as a lawyer, I could, only rely upon the affidavit of the doctor and the supporting medical records.  The affidavit of the doctor stated that it is wrong for the complainant to make this allegations as the doctor was continuously present.  But the fact of the matter is that in the treatment sheet I, found it hard to find and that too just one small initial of the treating doctor, to somehow prove that I have not given a false affidavit.  Well I am, not sure of the ultimate judgement which might be given from the UP-State Commission in this case because the body language of the Judge was a little different, of course on this point alone.  Why I have narrated the incident before you all, is just to share with you all the fact, that the consumer courts are these days going in to the minutest of details and scrutiny in medical negligence cases. We therefore, need to be aware, alert, and careful from even small omissions.
The indispensable Medical Literature
The next point which I want to share is about medical literature.  When doctors were brought within the purview of Consumer Protection Act in the year 1996 (V.P. Shantha’s case) huge debate took place that courts may not be able to appreciate the nitty gritty of medical science, so it will not be fair for them to decide medical negligence cases.  Argument was rejected by the Supreme Court that as per the constitutional scheme courts have always seen; considered and decided various complex issues;  problems and technical litigation in society.
That is why, in this back drop, it is necessary that when a medical negligence case comes in the consumer courts the lawyer, and doctor / hospital client should equip the court to explain clearly but simply all the aspects of its defence in the best possible manner. I am sharing all this with a purpose that in most of the districts when I see the appeals from the judgements of District Consumer Forums, often, I find that except bald pleadings in the case there is no supporting material to strengthen the doctors’ case.  It is not your fault because you must receive specialised advice on this point and in absence of which you could not do anything about it.  Contrary to that I also have this experienced that when I ask the doctors to give me supporting medical literature to prove their innocence huge volumes of medical jargon is given which does not help and nor the court would understand it either.  What is therefore actually required is simple, brief, and accurate medical literature to be filed by the doctor or the hospital before a consumer court to demonstrate and prove before it that you as a treating doctor made the correct diagnosis and that the standard treatment was administered on the patient by you. It would suffice the appetite of the courts of what they need from you.
The Consent
This is a very important and vital point of discussion and I thought that this needs some attention today.  Whenever we hear the word “consent”, obviously, the first impulse which comes to our mind is that for a doctor or a hospital a consent is a defence.  But the question is whether it is really a defence?  A simple consent duly signed by the patient or the attendant was taken as strong defence in favour of the doctor till a court judgement changed the scenario in the year 2008 when the Hon’ble Supreme Court in the case of Samira Kohli Vs. Dr. Prabha Manchanda 2008 (2) SCC 1 introduced the concept of “informed consent”.
What is “informed consent”; as per the verdict of the Hon’ble Supreme Court of India summarised view on “informed consent” means a duty of disclosure on part of the doctor or hospital to share with the patient – i) nature of procedure; ii) alternative; (iii) risk and iv) adverse consequences to refuse treatment. Thereafter the patient must or in an emergency the attendant must voluntarily; based on adequate information decide and give his / her consent whether he/she should submit to such treatment or not.
After the decision of the Hon’ble Supreme Court in the case of Samira Kohli the consumer court has started in each given case, scrutinising the Consent Form carefully, to conclude whether a consent comes with in the definition of Samira Kohli’s case or not. As an example however, I would share that in a recent judgment, the National Consumer Commission- in the case of Sarvodaya Hospital Vs. N.K. Srivastava  and others decided on 07th October 2016 (Revision Petition No.1299 of 2014) has found the following exemplary language to be a consent within the meaning of “informed consent” in accord with the Hon’ble Supreme Court judgment in the case of Samira Kohli .
“My patient had leaking p/v since 2.3.04.  The patient called coming out of today morning.  We already informed that weight of the baby is very low and time of maturity is not completed (present 30- weeks) and no guarantee that baby will service.  If baby survive then he should be admitted in nursery. Doctors tell us that presently completed pregnancy time is 30 weeks and baby’s lungs not developed properly.  In spite of this we are ready for operation (L.S.C.S) and tells the doctors to try their level best”.

I hope a few of the areas covered by me above would help you all with a sense of direction on important issues involved in medical malpractice litigation. As I said in the beginning “law is dynamic and ever evolving” , so will we when we meet next time for further interaction.
I believe the allotted time for my presentation is much lesser to the time allowed for open forum and hence I now invite you all to put your questions.
Thank you all once again!!!!!
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