Dr. (Prof.) Mahesh Baldwa,
M.D,D.C.H, FIAP, MBA, LL.B,LL.M , Ph. D(law)
SENIOR PEDIATRICIAN & MEDICOLEGAL ADVISOR
Formerly Assistant Professor of Pediatrics at T.N. Medical College and Nair Hospital, Mumbai-400008
Ex. Asst. Professor JJ Hosp, Grant medical college
Ex.Professor, paper setter & examiner of law to postgraduate students of University Department of Law, University of Mumbai
Baldwa Hospital, Sumer Nagar,S.V. Road,
Borivali (West)Mumbai 400 092
Cell 09322990138
Q. Who is medico-legal expert?
Ans: per son with proper medical qualification preferably at least MBBS with post graduate degree in one of the branches of allopathic medicine from recognized medical college. Such a doctor should be at least LLB, preferably LLM or PhD in law from recognized law college. If such a person has put in more than 5 to 10 years in medicolegal work, it is all the better.
Q. What are the stages of medical negligence cases? How does a medico-legal expert helps at those stages?
Ans: broadly they are pre-litigation stage and litigation stage.
The pre-litigation stages include threatening by patient party to sue in court or file a case in court, talking rough with doctor and staff, not cooperating in medical treatment, not obeying instructions and causing ruckus on each and every issue. Litigation stage starts with slapping a legal notice, writing to doctor a threatening letter, registering FIR with police station or directly filing a case in court. medico-legal expert helps at these stages to what to explain and what to keep in store for later stages as medical defence which is not known to other persons.
Q. can one prevent medicolegal case?
Ans: if one takes help of medicolegal expert ,he can make doctor and patient party that there is no negligence by showing diligence of doctor, showing OPD and indoor case paper. medicolegal expert can make doctor talk in simple way to make patient party understand problem and also translate medical jargon for legal purpose to make patient party and lawyer understand case at hand.
STAGE OF OUTSIDE COURT SETTLEMENT PRIOR TO RECEIVING NOTICE:
Q. Should doctor yield to patient or his relatives demand of asking money[1] for alleged negligence[2] when you feel that you were not at all negligent?
Ans: No. as medicolegal expert my view is that ,this will just postpone a problem. Reason being such patient’s is more likely to take you through legal process once you pay them.
Q. Should doctor yield to patient or his relatives demand of asking money for alleged negligence if you feel that you were negligent.
Ans: as medicolegal expert my view is that ,Depends upon facts and circumstance of attitude of relatives. In attitude is perceived to be favorable then get a “memorandum of out of court settlement for accord and satisfaction”[3] be drafted and signed by following a proper procedure. Take lawyers[4] or medico-legal experts/advisor’s[5] help in drafting and executing the procedure. It is not recommended for bad attitude patient’s relatives.
STAGE OF RECEIVING LEGAL NOTICE AND REPLYING IT:
Q. Should one receive a legal notice sent by lawyer?
Ans: Yes, as medicolegal expert my view is that , as doctor has an opportunity to answer[6], can focus on planning future defense if case is filed in consumer forum[7].
Q. Should one reply legal notice himself or through lawyer?
Ans: Yes, as medicolegal expert my view is that doctor[8] should reply legal notice through lawyer in consultation with medico-legal advisor’s mind.
Q. Why doctor should reply legal notice through lawyer in consultation with medico-legal expert/ advisor’s mind?
Ans: as medicolegal expert my view is that lawyer cannot differentiate and give the required flavor that doctor gave treatment diligently[9], prudently with due care and caution. Lawyer’s reply is mechanical denying alleged negligence. Lawyers have no knowledge of medicine at all. Lawyers are not able to explain inherent and unavoidable medical complications. Medical Complications are ubiquitous. Lawyers cannot understand intricate mechanisms involved in body medical physiology and underlying medical pathology. This lands Lawyers to draw half backed conclusions in cases of alleged medical negligence. Most Lawyers wish to depend upon procedural aspects of law restricting them to the law of limitation, law of alibi, law of evidence. Lawyers hardly touch upon medical facts to defend the case. Lawyers land their doctor clients in an odious situation of presenting the case alien to medical fraternity. Lawyer working in tandem with Medico-legal advisor can bring forth medical facts in legal notice reply facts circumstances which led to death, disability, transfer or increased expenses or hardships to relatives more convincingly for which doctor was not responsible.
STAGE OF OUTSIDE COURT SETTLEMENT AFTER RECEIVING NOTICE BY NEGOTIATIONS:
Q. Should doctor yield legal notice demand of asking money for alleged negligence by negotiations with patient’s lawyer or your own lawyer?
Ans: as medicolegal expert my view is that Chances of success are remote yet explore the possibility. But guiding principles are same as described above for “outside court settlement”
POST NOTICE: SLEEP OVER THE MATTER OR BE PROACTIVE
Q. What is the usual advise of Lawyer in post notice period?
Ans: as medicolegal expert my view is that I have seen Lawyers says that wait till the next legal move of the patient. Lawyers attitude is do not take till trouble actually troubles doctor then only take trouble in hurry to address the trouble leaves no time for doctor to gather the evidence which is vital to the alleged medical negligence case.
Q. Should one be proactive in preparing defense?
Ans: as medicolegal expert my view is that ,Medico-legal advice is “Yes”, because a forewarned doctor is forearmed in gathering evidence. In medical negligence case it is very time consuming to collect required evidence. Hurriedly collected scientific medical literature, evidence of affidavits of eye witness and expert witness[10] are less useful if not corroborated with pleadings in written statement, affidavit of evidence and rejoinders.
NATURE OF EVIDENCE:
Q. what is the nature of evidence courts require?
Ans: as medicolegal expert my view is that Courts require evidence[11] for diligence, prudence, care and caution in the alleged medical negligence case. Case papers explaining the process of disease, treatment and surgery, complications and their timely treatment needs to be properly explained as part of documentary evidence.
PRUDENCE
Q What is the evidence of prudence of doctor?
Ans: as medicolegal expert my view is that to prove doctors prudence in court evidence showing doctors qualifications, experience, competence and skills is required.
QUALIFICATIONS
Q. What is the evidence of qualifications?
Ans; as medicolegal expert my view is that to prove prudence based on doctors qualifications[12] in court as evidence, only submit medical council India or state medical council recognized qualifications and say on the basis of that you have treated the case.
Q. How to plead prudence when post graduate qualification which is not recognized by medical council India or state medical council?
Ans: as medicolegal expert my view is that to prove prudence when postgraduate qualification which are not recognized by medical council India or state medical council you have to prepare your evidence of prudence based MBBS[13] qualifications only. Avoid writing on your letterhead words Expert or specialist or “Daksha” or “Tagya” or “Visheshgya” so as to avoid negligence per se observation of court. Instead such doctors should safely plead and write on their letterheads words like “advisor” or “counselor” or “ Trained” or “ Experienced” “salahagar” or “Anubhavi”. Never plead or claim that you are by virtue of qualification and expert or specialist or super specialist in the field if your degree is not MCI recognized. Claiming in court that your qualified post graduate specialist /expert if your degree is not MCI recognized may put you in gross legal trouble. Practicing medicine in the field of that any specialty on the basis of experience and training is allowed but do not plead or claim to possess the unrecognized qualification in the court of law in medical negligence case.
WHEN EXPERIENCE IS CONSIDENERED SKILL
Q. What is the evidence of experience?
Ans: as medicolegal expert my view is that to prove prudence based on doctors experience in court as evidence, submit work experience certificates of medical colleges, medical institutes, and attendance of medical workshop certificates. Prepare a good bio-data[14] with number of surgeries/procedures done[15].
COMPETENCE
Q. What is the evidence of MBBS doctor’s field of competence?
Ans: as medicolegal expert my view is that ,To prove prudence of field of competence of MBBS doctors in court as evidence, MBBS person should submit and I, II & III MBBS mark sheets from medical college showing study, knowledge, competence & skill in conducting the treatment given in alleged medical negligence. MBBS person should submit transcript from medical college. Also prepare a good bio-data with number of surgeries/procedures done. Submit attendance of medical workshop certificates. One has to say very clearly that on the basis MBBS qualifications, one has treated the case and one is not claiming to have treated the case in the capacity of qualified specialist / expert in that specialty.
Q. Can MBBS doctor plead that one is competent to do LSCS[16] & treat fractures[17] or any diseases belonging to medical specialty usually given by qualified specialist in field possessing post graduate diploma or degree?
Ans: as medicolegal expert my view is that ,Yes, there is no legal bar in conducting the treatment if one is competent to conduct treatment in cases belonging to any medical specialty as long as one does not claim to be qualified specialist in that field of senility. MBBS should not claim through signboards, letterheads that he is qualified specialist in that medical field.
PRUDENCE OF SKILL
Q. How to plead prudence of skill?
Ans: as medicolegal expert my view is that ,the prudence of skill is combination of qualifications, work experience[18] and competence, which should be reflected in bio-data of doctor and case paper showing conduct of treatment of case to be in a peer approved way[19]. Collected scientific medical literature, evidence of affidavits of eye-witness and expert witness are less useful if not corroborated with pleadings in written statement, affidavit of evidence and rejoinders.
RECEIVE OR REFUSE NOTICE
Q. Should you receive or refuse notice from consumer courts?
Ans: as medicolegal expert my view is that to receive summons from consumer courts and never refuse summons. Not defending yourself/hospital/nursing home[20] properly in a case of alleged negligence shall enable the court to pass ex-parte order of negligence & compensation against you. That will send wrong message to other doctors, press and media precedent that doctors are generally negligent and not law abiding. This will cause spiraling of premiums of professional indemnity insurance by insurance companies and the medical professionals resorting to defensive practice.
TIME GIVEN FOR FILING WRITTEN STATEMENT
Q.18 In how many days one should prepare & file to answer Consumer[21] complaints[22] (CC) ?
Ans: as medicolegal expert my view is that ,usually within 45 days or date is specified in the summons[23].
Q. What is the legal name for answer/reply to CC?
Ans: as medicolegal expert my view is that , legal name for answer/reply of consumer complaint is written statement (WS) of opposite party (OP) or respondent.
STUDY OF COMPLAINT
Q.What is title of CC & How to read title of CC with a view to reply CC?
Ans: as medicolegal expert my view is that ,title of CC contains name of consumer forum, place, name of complainant[24] & opposite parties and their addresses. While one reads CC one will find that it starts with the name of forum and place where it is situated. It should have the territorial jurisdiction over place where you practice. If it is not so you have to challenge the same under s. 11 of consumer protection Act-1986 (CPA). Read the name of complainant whether he is patient himself, guardian, parent, consumer organization or legal heir[25]. If it does not fall in that category then challenge that under S.2 (1) (d) of CPA. Then read name of OP or all OP’s and see whether you are sued in your own name or in the name of Hospital/Nursing Home (NH). You have to see whether it is beneficial to reply separately or jointly. If you have, individual medical indemnity[26] policy (MIP) replies separately. If you have additional Hospital/Establishment error & omission policy (HEO) then reply jointly. See whether insurance party is named as OP[27] or not? If not then make an application to add insurance company a party. Also see who else treated this patient and if possible and necessary make an application to add their names as OP.
Q. How to read typical initial six to eight of paragraphs of CC with a view to reply CC?
Ans: as medicolegal expert my view is that usually paragraphs no. 1 of CC usually describes the age, occupation and income or earning capabilities of the patient. Paragraphs no. 2 of CC usually describes what patient was suffering from and laymen diagnosis & in complainant’s view what treatment was required to be given. Paragraphs no. 3 of CC, usually describes, doctors capabilities/in-capabilities of leaving mob while doing surgery[28], infrastructure, promises made to patient. Paragraphs no. 4 of CC usually describes, what payment was made? Paragraphs no. 5 of CC usually describes whether doctor issued receipts and for some he did not issue receipts. Paragraphs no. 6 of CC usually makes a point blank blunt allegation of negligence in conducting treatment, diagnosis or investigations, anesthesia, operation or procedure. Paragraphs no. 7 of CC describes if patient is transferred to some other hospital then that event, those doctor’s views and money spent there. Paragraphs no. 8 of CC about the nurses [29]/ staff/assistants or any such related issue.
Q. How to read typical middle six to eight of paragraphs of CC with a view to reply CC?
Ans: as medicolegal expert my view is that ,Paragraphs no. 9 to 12 of CC will describe in laymen details about doctors capabilities / in-capabilities, infrastructure, promises made to patient by repeating same thing again & again irritatingly. Paragraphs no. 13 to 18 of CC will describe in laymen details about negligence in conducting treatment, diagnosis or investigations, anesthesia, operation or procedure by repeating same thing again & again. Paragraphs no. 19 to 22 of CC will describe in laymen details about transferred to some other hospital then that event, those doctor’s views and money spent there, by repeating same thing again & again.
Q. How to read typical penultimate three to six of paragraphs of CC with a view to reply CC?
Ans:as medicolegal expert my view is that ,Paragraphs no. 22 to 25 of CC will describe in laymen correlation between negligence and loss suffered in details by repeating same thing again & again Paragraphs no. 25 to 27 of CC will describe jurisdiction[30], cause of action[31] & fees paid with petition.
Q. How to read typical prayer clause paragraphs of CC with a view to reply CC?
Ans: as medicolegal expert my view is that to Summarize negligence causing damages and financial hardships. Asks usually compensation[32] of 15 to 20 lakhs in District forum[33], 50 to 95 lakhs in state commission[34]. National commission demand is crores.[35]
SUMMARY & CLASSIFICATION OF ALLEGATIONS
Q. How to classify the allegations in CC with a view to reply CC?
Ans: as medicolegal expert my view is that ,usually allegations are related to mean that doctor is not qualified, there was inadequate infrastructure, nurses & staff members are not qualified[36] did not attend[37], doctor delayed in diagnosing or misdiagnosis or delay in investigating or treating the patient. Doctor was not present during emergency. Consent was not obtained. There was overcharging. Transfer to higher center delayed. Plethoras of derogatory words are used against medical profession, doctors, nurses and staff members. Some times allegations of unnecessary investigations and treatment are used. Excessive irrational compensation is asked in CC.
WRITTEN STATEMENT (WS)
Q. How to reply initial six to eight of paragraphs of CC in written statement(WS) of doctor /opposite party (OP)?
Ans: as medicolegal expert my view is that ,reply to Paragraphs no. 1 of CC that patient did not inform/misinformed you about occupation and income or earning capabilities. Patient is not a consumer[38]. Reply to Paragraphs no. 2 of CC ignoring what patient has described what patient was suffering from and laymen his diagnosis[39] & in his about treatment and write what you have written in your case paper. Reply to Paragraphs no. 3 of CC agreeing to your capabilities as per what degrees medical council registration[40] shows and deny in-capabilities in qualification, knowledge, experience, skill[41], infrastructure by attaching required certificates to prove the same. Deny any promises or guarantee made to patient, as professionals do not guarantee cure. Make a note of hiding previous illenessess[42]. Reply to Paragraphs no. 4 of CC deny if payment was made was less and describe actual payment made and ask complainant to produce receipts in court. Reply to Paragraphs 5 of CC deny, not issuing receipts. Reply to Paragraphs no. 6 of CC deny point blank blunt all allegations of negligence in conducting treatment[43], diagnosis or investigations, anesthesia, operation or procedure and say it was conducted diligently, prudently with due care and caution. Reply to Paragraphs no. 7 of CC that patient is transferred to some other hospital diligently, prudently with due care and caution[44] and give reason for transfer. Deny if you do not agree with doctor’s views or confirm it. Deny money spent there and say you are not responsible for same as you did every thing diligently, prudently with due care and caution. Reply to Paragraphs no. 8 of CC about the staff/assistants that they worked under your direct supervision and directions and they are individually for any action/inactions as you were deciding authority on conduct of all aspects related to patient.
Q. How to reply to middle six to eight of paragraphs of CC?
Ans: as medicolegal expert my view is that ,reply by saying Paragraphs no. 9 to 12 of CC is repetition of allegations doctors capabilities/in-capabilities, infrastructure, promises made to patient by repeating same thing again & again irritatingly and same is already replied in earlier paragraphs. Reply to Paragraphs no. 13 to 18 of CC by denying all allegations and saying it is laymen view and details about alleged negligence in conducting treatment, diagnosis or investigations, anesthesia, failed operation[45] or procedure[46] by repeating same thing again & again, which is replied earlier. Reply to Paragraphs no. 19 to 22 of CC deny allegations by saying it is laymen details about transfer and your conduct of transfer is described in earlier para’s. Deny all allegations based on other hospital doctor’s views. Deny allegations about money spent there and say it is being unnecessarily repeated describing same wrong things again & again.
Q. no. 27 How to reply to penultimate three to six of paragraphs of CC?
Reply Paragraphs no. 22 to 25 of CC by saying that it is laymen correlation between negligence and loss suffered and enclose scientific literature and affidavit of expert from other doctors supporting your view. Reply to Paragraphs no. 25 to 27 of CC and say whether jurisdiction, cause of action & fees paid with petition are correct or incorrect. In case it is incorrect then one has to move separate miscellaneous application to lodge objection to jurisdiction, cause of action.
Q. How to reply prayer clause paragraphs of CC?
Ans: as medicolegal expert my view is that to deny alleged negligence causing damages and financial hardships point blank. Deny having incurred any liability of paying 15 to 20 lakhs in District forum,50 to 95 lakhs in state commission. National commission demand is crores totally and say you did everything diligently, prudently with due care and caution which is evident from certificates of qualification, experience, skill and competence, photographs show infrastructure, scientific literature shows complications which can occur leading to death or disability and same is also.
SYNOPSIS OR HOW TO SUMMARIZE WRITTEN STATEMENT (WS)
Q. How to reply by classifying the allegations in CC & replying in summary way?
Ans: as medicolegal expert my view is that to deny allegations are related to mean that doctor is not qualified, there was inadequate infrastructure by certificates of qualification, experience, skill and competence, photographs, deny staff members did not attend supported by affidavit of eye witness, deny that doctor conducted delayed in diagnosing or misdiagnosis or delay in investigating or treating the patient on the basis of case papers. Deny that Doctor was not present during emergency supported by affidavit of eyewitnesses. Deny Consent was not obtained by showing consent. Deny overcharging by enclosing carbon copy of actual bill. Transfer to higher center delayed. Deny plethoras of derogatory words are used against medical profession, doctors, nurses and staff members by threatening to take legal action separately for these remarks. Deny allegations of unnecessary investigations and treatment by scientific literature and affidavit of expert witness. Prove that compensation asked is excessive & irrational in CC and in any case you are not liable as you conducted everything diligently, prudently with due care and caution as described above.
Q. What general precautions should on take to reply by classifying the allegations in CC & replying in summary way?
as medicolegal expert my view is that is first and foremost denying all allegations of negligence[47] & deficiency in service needs to be emphasized. Whatever pleas in defense are raised they should be supported by evidence in the first instance of mentioning specifically in reply to the CC. Subsequent new explanation / pleas during hearing of the case are liable to be rejected.
LEGAL TECHNICAL DEFENCES
Q. What is Legal technical defenses for doctors/hospitals in preparing WS defense?
as medicolegal expert my view is that following legal technical defenses for doctors/hospitals are:
- Cause of action[48]
- Pecuniary/territorial jurisdiction
- Non-joinder or mis-joinder of parties[49]
- Free service given
- No locus standi as legal representative (LR)
- Case subjudice civil[50] / criminal court[51]
- The compensation claimed has been inflated/exaggerated for bench hunting of jurisdiction of the Forum/Commission suitable to complainant.
- The CC is time-barred[52]
- The CC is frivolous and vexatious and liable to be dismissed under section 26 of the Act[53].
- CC has complicated issues involved; requiring recording of evidence of experts, hence complaint case should be filed in a civil court.
- Doctor is dead i.e. action persanalis moritur cum persona[54]
- In case there is an indemnity insurance or hospital error and omission policy make insurance company a party to suit.
FACTUAL DEFENCE
Q. What is Factual defense for doctors/hospitals in preparing written statement[55] (WS) defense?
Ans: as medicolegal expert my view is that following factual defenses are
- Case paper /discharge summary record of patient[56]
- Detailed bio-data of doctor supported by qualifications, experience, training, experience, expertise, certificates/appreciation certificates/awards/attendance at various updates, conferences, workshops
- Photographs showing infrastructure
- Affidavit of eyewitness.
DEFENCE BY SUPPLYING AFFIDAVITS OF EXPERT DOCTORS & SCIENTIFIC LITERATURE
Q. What is defense by supplying affidavits of expert doctors & scientific literature in preparing WS defense?
Ans: as medicolegal expert my view is that kindly Annex 5 to 10 affidavits of expert doctors to state that you conducted everything diligently, prudently with due care and caution. Also annex 5 to 10 scientific literature[57] to show you conducted everything diligently, prudently with due care and caution as per standard text book way. If available, in case of death, if medical board was set up by police then its favorable report or favorable postmortem report or favorable civil surgeon report is valuable. In case of death due to poisoning, favorable forensic laboratory report. In case of alleged disability in available then submit any favorable disability certificate or report. In case of transfer next hospital case records, discharge card to be submitted if favorable.
OTHER RESIDUAL DEFENCES
Q. What are other residual defenses to be written in WS defense?
Ans: as medicolegal expert my view is that ,they are:
a. Complainant not coming to the court with clean hands, i.e., he has suppressed material facts, e.g., previous illness, treatment, etc.
b. There are inconsistencies between notices sent directly or through a lawyer/consumer groups and the complaint made in the court. The inconsistencies should be specifically pointed out.
c. Circumstances of the case, viz., there was, emergency, lack of facilities (e.g., rural area), no one to give history of patient’s illness, etc.
d. Burden of proof of duty of care, breach of that duty; causation, damage, etc. is on the complainant
e. Claim against doctor/hospital usually fails, if it can be proved that there was a break in the chain of causation (novus actus interveniens[58]). This is where an act by a third party supersedes the original negligent act of the OP/doctor/ defendant. The court must decide whether the original act of the defendant was responsible for the damage or if the intervening act constitutes a novus actus interveniens[59], that is, the second act caused the damage. The second act could be an intervening act by a third party or an intervening act by the claimant himself.
f. Consultation/treatment taken by patient from other doctors/other systems of medicine simultaneously. This will subdue / dilute the alleged negligence of OP as many other reasons for occurrence of damage makes it impossible to pinpoint at OP.
g. Contributory negligence.-As in all other defenses, this defense must be pleaded in the first instance showing how exactly it contributed to damage caused by alleged medical negligence.
BASICS OF RULES OF DRAFTING OF REPLY
Q. What are other usual basics of rules of drafting of reply/defense by or on behalf of the doctor/hospital ?
Ans: as medicolegal expert my view is that the very purpose of defense drafting is to create a record, which makes part and parcel of proceedings in court and helpful even when case is lost and one needs to appeal. Since you cannot add / alter /amend or take a new plea in appeal court. Defense should be in writing which should contain plea about the doctor’s/hospital’s denial/clarification / explaining cause & effect relationship[60] in reply to the complaint.
It is necessary to reply the complaint para-wise and the allegations needs denial or explanation and your comments should be written down para-wise against each of the allegations narrated in complaint.
Defense (reply) is legal opportunity to narrate or state in written format to reply each of the allegations made by the complainant as well as provides one’s own version of the matters under dispute. A basic legal and fundamental purpose of the defense is that, when read in tandem or conjunction with the complaint, it should make clear those disputed points on which parties are not in agreeing to.
The most important rule in drafting a defense is to ensure that every material allegation in the complaint is properly answered and dealt with supporting evidence as annexure.
DEALING WITH AN ALLEGATION AGAINST THE DOCTOR/HOSPITAL
Q. What are dealing with an allegation against the doctor/hospital ?
Ans: as medicolegal expert my view is that you have to admit and reply on statement in your favor. You have to deny all unfavorable statements and allegations with explanation with evidence to show defendant’s side of the story is wrong, false, vexatious, motivated to extract money.
Sometimes the defendant has no evidence to rebut the allegation with the help of medical record then look whether it can be supported by affidavit of eyewitness or affidavit of expert witness. Court takes it for granted that if any allegation, which is neither denied nor admitted in your answer, is, deemed to have been admitted as evidence without proof. The best way to make sure that nothing is admitted by above said legal dictum of court presumption of guilt since allegation is neither denied nor admitted; is by dealing with each of the complainant’s allegations one by one in para-wise manner. The defendant’s response to the allegations made by the complainant gives proper picture of whole event on larger canvass with respect to case. Court is prompted to works with broad framework of the defense with respect to complaint. It gives court not only fair idea about disputes between the parties. Whenever a single paragraph contains more than one allegation, each must be specifically admitted or denied. When the allegation is denied, there is need to give elaborate explanation with evidence in that paragraph[61].
In some cases, a paragraph may appear to consist of one allegation while in fact containing a central allegation and one or more subordinate allegations. Therefore, it is essential that while dealing with a paragraph of the complainant, subordinate allegations should not be given a pass or overlooked. Simply admitting allegations in the paragraph would therefore admit subordinate allegations that the defendant should deny or traverse it diligently.
The defendant should not deny and traverse any indirect or implied allegations in the complainant’s paragraphs with specific reply with evidence.
But where a single paragraph of the complaint contains multiple and complicated allegations, the appropriate reply/ answer or response may be a conclusion of admissions, non-admissions and/or denials or to traverse the paragraph by a combination of non-admissions and denials with proper evidence. It should also be particularly noted that in drafting the reply, the proper approach is to deny or traverse both the fact and statement or narrations causing damage and its extent since they are not supported by disability certificate or expert witness by complainant.
PLEADING ADDITIONAL FACTS BY DOCTOR/HOSPITAL
Q. What are Pleading additional facts by doctor/hospital ?
Ans: as medicolegal expert my view is that kindly remember an important function of the defense is to plead additional facts, which fill gaps and explain & clarify or correct cause and effect relationship based on theory of percentage of complications or death occurring while treating the illness. All errors in the complainant’s account of the events alleged to have given rise to a cause of action should be accepted/denied or explained. It should be in conformity with reply to notice received, all the allegations made therein should be rebutted in as short a language as possible reserving therein the right to take further appropriate defense after the filing of complaint.
PROCEDURAL DEFENCES/ACTION TO BE TAKEN BY DOCTOR/HOSPITAL
Q. What are the procedural defenses/action to be taken by doctor/hospital ?
Ans: as medicolegal expert my view is that as mentioned above once again take objection to the pecuniary, territorial jurisdiction of the Consumer Forum as also that the complaint raises complicated questions of fact and law and/or requires leading of voluminous evidence should be raised if applicable.
SWORN VERIFICATIONS REQUIRED FOR
Q. How a written statement (WS) should be properly verified and sworn.
Ans: as medicolegal expert my view is that Written statement (WS) should be properly verified and sworn in front of notary or registrar of court concerned
Q. How all affidavits of eye or expert witness are properly verified and sworn.
Ans: as medicolegal expert my view is that the affidavits of eye or expert witness should be properly verified and sworn in front of notary or registrar of court concerned. Expert witness on letterhead has less value and liable for cross-examination more often than sworn affidavit.
FILE OBJECTION FOR THE COMPLAINT WITH OUT AFFIDAVIT
Q. How to file objection for the complaint without affidavit and which has not been properly verified, sworn or attested.
Ans: as medicolegal expert my view is that kindly move a miscellaneous application to file objection for the complaint without affidavit and which has not been properly verified, sworn or attested by notary[62] and prayer clause should ask for dismissal with cost.
APPLICATION FOR CROSS-EXAMINATION OF THE WITNESSES
Q. How to file application for cross-examination the witnesses, and re-butt the evidence of the complainant?
Ans: as medicolegal expert my view is that kindly move a separate miscellaneous application for cross-examination the witnesses of the complaint and prayer clause should ask for dismissal with cost if they do not arrange for cross examination.
Q. How to file application objections for additional pleas to be raised after receipt of complaint in rejoinder.
Ans: as medicolegal expert my view is that , doctor has to file application objections for additional pleas to be raised after receipt of complaint in rejoinder by complainant. Move a separate miscellaneous application for objecting to additional pleas to be raised after receipt of complainant’s cross-objection in rejoinder then prayer clause should ask for dismissal with cost if they do not arrange for cross examination.
AFFIDAVIT OF EVIDENCE
Q. How to file affidavit of evidence?
Ans: as medicolegal expert my view is that kindly submit affidavit of expert witness and file a list of expert witnesses with affidavit of evidence. Expert Evidence could be rebuttal of complainant’s evidence in the form of affidavits by doctors willing to give evidence in defense.
WRITTEN ARGUMENTS
Q. How to file written arguments?
Ans: as medicolegal expert my view is that kindly submit written arguments by classifying disputed and undisputed points. Then put medical scientific explanation of complication leading to disability and death supported by affidavits of expert witness, literature and case laws.
APPEAL
Q.How to file an Appeal[63]?
Ans: as medicolegal expert my view is that , an Appeal must be filed after a complaint is decided against a doctor/hospital within the time limit, within thirty days of passing of the order from forum to state commission or from state commission to national commission or from national commission to supreme court as the case may be.
CROSS APPEAL
Q. what is cross Appeal[64]?
Ans: as medicolegal expert my view is that if both the parties are dissatisfied with lower court decision so complainant and OP both file appeal within the time limit, within thirty days of passing of the order from forum to state commission or from state commission to national commission or from national commission to Supreme Court as the case may be. This is known as cross appeal and both the appeal are together.
REVISION PETITION
Q. What is revision petition?
Ans: as medicolegal expert my view is that , usually there is only one appeal allowed in consumer courts. Next appeal to appeal is known as revision petition.
EXECUTION PETITION
Q. What is execution petition?
Ans: as medicolegal expert my view is that ,if the order is not complied by OP then complainant can file s. 27 an execution petition in consumer courts. This enforcement is known as execution petition. Proceedings are separately taken up and both the parties have to attend the hearing on appointed day & time. Only way to halt execution proceedings is obtain stay of higher court on the lower court order.
MISCELLANEOUS APPLICATION
Q. What is Miscellaneous application?
Ans: as medicolegal expert my view is that they are connected with matters related to errors in name of parties, not with in proper jurisdiction, not with in limitation period of 2 years, execution[65] of orders, grant of stay on orders of lower forum, interim relief’s[66], removal of name from array of opposite party or adding name of extra OP or insurance company. All the matters, which are not covered above need a miscellaneous application.
DURATION OF PROCEEDINGS
Q. How much time for disposal of case in consumer courts is prescribed?
Ans: as medicolegal expert my view is that , prescribed time limit is 90 days in cases allegations of deficiency[67] in service and five months where goods require testing in appropriate laboratory.
Q. Are fees prescribed for filing complaint and appeal?
Ans: yes
COURT FEES
Q. How fee for complaint in forum and how much for appeal is prescribed?
Ans: as medicolegal expert my view is that for Forum, for complaints of value up to 1 lakh, Rs100/= up to 5 lakh,Rs200/= up to 10 lakh,Rs300/=, up to 15 lakh,Rs100/=, up to 20lakh maximum Rs. 500/=. In state commission, for complaints of valuing more than to 20 lakh, Rs. 2000/= Appeal to state commission maximum fee up to 25,000/=, for appeal in National commission maximum fee up to 35,000/=,
and for appeal in supreme court maximum fee up to 50,000/
INFORM INSURANCE COMPANY
Q. How to inform insurance company?
Ans: as medicolegal expert my view is that if there is an indemnity or hospital error and omission insurance policy in existence the doctor/hospital should inform the insurance company in writing immediately on a complaint being lodged by a patient with a copy of the complaint and notice received from the court.
[1] Dr. (Miss.) Jasmine Patel v Dr. R.J. Manek Shah and Another, 1997 (5) CTJ 766NC, Dr. (Ms.) Jasmine Patel v Dr. R. J. Maneksha and Ors., Opp. Parties, 2000 (1) CPR 421Mah,SCDRC
[2] Dr. Laxman Balkrishna Joshi v Dr Tribmbak Bapu Godbole, 1968 ACJ 183 (SC):
AIR 1969 SC 128: 1969 (1) SCR 206
[3] one of the method of release of tort-feasor is “Accord and satisfaction” under Law of tort
[4] Definition of lawyer is as under advocate’s Act-1961
[5] They are not lawyers but usually practicing medical doctors, But possess medical & legal degrees separately.
[6] Audi altrem partum as defined in jurisprudence
[7] as constituted under s.9 of consumer protection act-1986 as amended up to date
[8] any person who is registered medical practitioner under any statutory medical council act
[9] diligence is opposite of negligence
[10] as defined under s. 45 of Indian evidence act-1872
[11] as defined under s. 61 to 65 A & B of Indian evidence act-1872
[12] registered authority for medical practitioner under any statutory medical council act of state or central government but not under The societies act 1860 or Indian trust act or any association like Indian Medical association etc is not valid, Dr. Sr. Louie and Another v Smt. Kannolil Pathumma and Another, 1993 (1) CTJ 32,NC
[13] Bachelor of medicine & bachelor of surgery from any university established by state or central government act or deemed university recognized by university grants commission in Indian as well as medical council established by state or central government act
[14] curricular vitae /work experience /work shop and conference attendance
[15] Dr. N. T. Subrahmanyam and Another v Dr. B. Krishna Rao and Another, 1996 (4) CTJ 785,NC
[16] Lower segment cesarean section
[17] of human bones
[18] Whitehouse v Jordan and another, 1981 (1) AllER 267, 1981 (1) WLR 246, 1981 (1) All(ER) 276, [HOUSE OF LORDS]
[19] Bolam v Friern Hospital Management Committee, 1957 (2) AllER 118, 1957 (1) WLR 582
[20] duly registered under nursing home registration act of state
[21] S. 2 (1) (d) of consumer protection act -1986
[22] S. 2 (1) (c) of consumer protection act -1986
[23] 13 (1) (a) of consumer protection act -1986
[24] S 2 (1) (b) of consumer protection act -1986
[25] S. 13 (7) of consumer protection act -1986
[26] as defined under chapter VIII & s. 124 of Indian contract act 1872
[27] S. 11 (2) of consumer protection act -1986
[28] Mrs. Meena Vyas v City Nursing Home and Hospital and Another, 2001 (2) CPJ(PUNCDRC) 172
[29] qualified and registered under statute of nursing council of state government or central government
[30] as defined in s. 11 of consumer protection act 1986
[31] as defined in s. 11 ( c ) of consumer protection act 1986
[32] Compensation is pecuniary grant ordered by court which is equivalent to damage suffered usually Motor vehicle act & workmen compensation act are taken as guidelines. As mentioned in 11 (1) of consumer protection act -1986
[33] 11 (1) of consumer protection act -1986
[34] 17 (1)(i) of consumer protection act -1986
[35] 21 (1)(i) of consumer protection act -1986
[36] Harjot Ahluwalia (Minor), (Through His Parents-Mrs. Harpreet Ahluwalia (Mother) and Mr. Kamaljit Singh Ahluwalia (Father) v Spring Meadows Hospital and Others, 1997 (5) CTJ 734 NC
[37] Pravat Kumar Mukherjee v Ruby General Hospital and Others, 2005 (2) CPJ 35,NC
[38] Dr. C. S. Subramanian v 1. Kumarasamy. 2. The Consumer Disputes Redressal Forum, Tanjore, 1994 (2) CTJ 294, 1996 (86) CC 747 Madras HC overruled by Indian Medical Association & Ors. v. V.P. Shantha & Ors. JT 1995(8) SC 119:
AIR 1996 SC 550: 1995 (6) SCC 651: 1995 (3) CPJ 1 (SC): 1995 (3) CPR 412(SC)
[39] Brij Mohan Kher v Dr. N. H. Banka and Another, 1994 (2) CTJ 862,NC
[40] Mrs. Poonam Verma v Dr. Ashwin Patel and Another, 1995 (3) CTJ 413,NC
[41] S. Narinder Singh v Dr. R. D. Sood, 2003 AIR (J&K) 20, 2003 AIR (J&K) 20, 2003 AIR(J&K) 20, [JAMMU AND KASHMIR HIGH COURT
[42] Smt. Subh Lata, Wd/O. Sh. Ved Prakash, 996/3, Punjab Mata Nagar, Pakhewal Road, Ludhiana v Christian Medical College, Ludhiana Through Its Medical Superintendent and Another, 1994 (2) CTJ 729, [PUNJAB CONSUMER DISPUTES REDRESSAL COMMISSION]
[43] Sidaway v Bethlem Royal Hospital Governors and others, 1985 (1) AllER 643, 1985 AC 871, 1985 (2) WLR 480, [HOUSE OF LORDS]
[44] N. S. Sahota v New Ruby Hospital and Others, 2000 (2) CPJ(PUNCDRC) 345
[45] State of Punjab v Shiv Ram and Others 2005 (7) SCC 1, 2006 (1) CCC 1SC
[46] Nachhatar Singh v Malkeet Singh, 2001 (3) CPJ(PUNCDRC) 237
[47] Dr. P. N. Bhaskaran and Anr v Mrs. Molly Robinson and Anr, 2000 (1) CPJ(KERCDRC) 81
[48] Dr. R. C. Sharma v Jage Ram, 2003 (1) CPJ(Ncdrc) 248,NC
[49] as defined in Law of tort
[50] Code of Civil Procedure, 1908 (5 to 1908)
[51] as under The Indian Penal Code (45 of 1860), and the Code of Criminal Procedure, 1973 (2 of 1974)
[52] s.24 A of consumer protection act -1986
[53] s.26 provides penalty up to Rs.10,000/ under consumer protection act -1986
[54] Dr. (Mrs.) Ranjna Bhardwaj and Another v Rekha Rani, 2003 (3) CPJ 697, Chandigarh Consumer Disputes Redressal Commission
[55] s.13 (2)(b) of consumer protection act -1986
[56] Ms. Rohini Devi v Dr. H. S. Chudavat and Another, 2001 (3) CPR(NCDRC) 172, 2003 CPJ(NCDRC) 153
[57] Balwinder Kumar v Arya Hospital and Others, 2001 (2) CPR 394, [Chandigarh consumer disputes redressal commission]
[58] as defined under law of tort
[59] Dr. S. Gurunathan (Dead) v Vijaya Health Centre, 2002 (3) CPJ(Ncdrc) 211,NC
[60] K. V. Narayani v Dr. P. Gopinathan, 2001 (3) CPJ(KERCDRC) 498
[61] Air Commodore (Retd.) Satyanarayana v L. V. Prasad Eye Institute and Another1998 (6) CTJ 548, [Andhra Pradesh consumer disputes redressal commission]
[62] Notary Act
[63] s.15 & 23 of consumer protection act -1986
[64] s.15 & 23 of consumer protection act -1986
[65] s. 27 of of consumer protection act -1986
[66] s. 13 (3) (B) of consumer protection act -1986
[67] s. 13 (3) (A) of consumer protection act -1986
