Medical negligence and Consumer Protection Act- (II)
Tips for making complaints
Dr. Y. Premchandra

Information a complaint should contain of:
A complaint should contain the following information - a) name, age, description and the address of the complainant, b) the name (s), description and the address of opposite party (ies) the facts relating to the complaint, when and where it arose, the allegation(s); do not suppress any material fact, d) the documents, if any, and affidavit in support of the allegations contained in the complaint.

Points to be taken of while preparing complaint: 
a) Notice is not necessary under the CP Act, but one may send a notice if advised.
b) Always support your allegations with record and ensure all documents are properly verified and attested.
c) Make all treating Doctors/assistants/anesthetist/Hospital/Trust/Insurance Co., where the hospital or doctor is insured, as parties, do not forget to make a doctor a party where further treatment was taken.
d) Mention if the doctors/assistants/nursing staff was duly qualified or not.
e) Mention lack of proper facilities if it is so.
f) All relevant pleas should be raised in the first instance of making/filling a complaint; additional pleas raised during hearing may not be allowed.
g) Burden of proof of duty of care, negligence, damage and justification of the compensation claimed is on the complainant; one should, therefore, have sufficient documentary evidence viz. prescriptions, reports, case history, receipts, records etc. and
other evidence.
h) Highlight if no consent was taken or where consent was taken for a specified surgery/ procedure but another surgery/ procedure was done, without consent.
i) Pleading must be supported by affidavit, standard textbooks or mainstream literature, or oral evidence usually of the specialist in the branch of medicine/ surgery in which negligence occurred.
j) Do not suppress material facts, always mention that you had carried out the doctor's instructions carefully, so as to avoid being held contributorily negligent.
k) Always state any new or unexpected problem or illness which is the outcome of treatment / surgery undergone.
l) While drafting complaint, avoid unnecessary details, avoid mentioning what you think the doctor should have done, making wild allegation, which have no basis.
m) In case the alleged negligence occurred in operation theatre, ICU, labour room, nursery (new born care unit), You can take a plea that in these areas you had no access and hence take advantage of the Presumption that negligence might have occurred there.
n) Try to invoke the principle of resipsa loquitur so that the onus of proof of proving innocence shifts to the doctor/ hospital.
o) Opportunity of right of cross-examination of doctor /witness.

Calculation of Quantum of compensation:
The extent of compensation claimed should be commensurate with the damage or injury caused as a result of medical negligence. However, it is becoming a tendency to make inflated claims and thus to embarrass the opposite party doctor by filling the case before the State Commission, which may be having place of sitting at a different town. In civil cases, if exaggerated claims are made, the plaintiffs have to pay higher court fee, which prevents them from making excessive claims. However, in the case of complaints under the CP Act, there is no such check. This sometimes results in making inflated claims in order to exclude the pecuniary jurisdiction of the lower consumer forum.

Time- limit for deciding a complaint:
As far as possible, within 90 days from the first date of hearing. In case some laboratory test are required, then it is to be decided within 150 days, as far as possible. In practice the time taken is still much longer but still far less than the time taken in a civil suit.

Provisions of appeal:
An appeal can be field before the State Commission against an order of the District Forum. Similarly, an appeal lies before National Commission against the order of the State Commission and before the Supreme Court against the National Commission. If the opposite party files an appeal against order or District Forum and at the same time the complainant too is not satisfied with the reliefs/ compensation awarded to him, it is not open to the complainant to raise a plea for seeking any fresh or enhanced relief or compensation in such appeal proceedings.

Special Powers vested with Consumer Forums:
The Consumer forums are vested with the same powers as are vested in a civil court under Code of procedure while dealing with a complaint under CP Act in following matters: (section 13(4), C.P. Act)
i) Summoning and enforcing the attendance of witness and examining the witness on oath (this includes calling an expert witness - doctors and enforcing his attendance).
ii) The discovery and production of any document or other material object producible as evidence.
iii) Where during any proceedings under the CP Act, the State/District Forum/State/ National Commission has any ground to believe that any book, paper, commodity or document which may be required to be
produced in such proceedings are being, or may be destroyed, mutilated, falsified or secreted, it may, by written order, authorize any officer to exercise the power of entry and search of any premises; such authorized officer may also seize such books, papers, documents as required for the purposes of CP Act.
iv) On examination of such seized documents or commodities, these may be retained or returned to the party concerned.
v) The reception of evidence of affidavits.
vi) The requisitioning of the report of the concerned analysis or test from the appropriate laboratory or forum any other relevant source.
vii) Issuing of any commission for the examination of any witness, and any other matter which may be prescribed.

Consequences of failure to appear on the date fixed:
The consumer forum has discretion either to dismiss the complaint in default or if sufficient amount of the evidence has already been recorded, decide it own merit.

Reliefs Granted by Consumer Courts:
The following reliefs may be granted;
i) Refund of the charges paid.
ii) To award compensation for any loss or injury suffered due to the negligence of the opposite party / Nursing home.
iii) To remove the deficiency in the services, and
iv) To provide for adequate loss to parties.

(Courtesy: The Sangai Express)

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