The three elements of Negligence
1. The defendant owes a duty of care to the plaintiff;
2. The defendant has breached this duty of care;
3. The plaintiff has suffered an injury due to his breach.
A care of medical negligence is established when these three elements are fulfilled.
Areas of Medical Negligence upon which a claim can be filed
· Damage to organs due to negligence;
· Wrong treatment arising out of wrong diagnosis;
· If money receipts, bills, prescription or test reports are not provided;
· When the treatment administered was not in line with the established medical norms/literature;
· If a thing is left in the body or a wrong part has been removed;
· If an allopathic doctor gives a homeopathic treatment or vice-versa;
· Oxygen cylinder is non-available.
Against whom the claim can be filed
3) Medical staff,
5) Any other person or institution who offers medical advice and treatment.
Claim Process before a Civil Court
Ø A suit can be filed before the civil court to claim for damages or any other relief for the alleged act of the doctor or hospital or any medical staff,
Ø After the doctor files the written statement, leading of evidence is carried out,
Ø Facts and Evidence is examined and a decree is passed by the court.
Claim Process before a Consumer Court
The primary claim process of medical negligence now comes under the Consumer Protection Act, 1986. If the claim is less than 20 lakh rupees, it would be filed before District Forum. If it is within 1 crore, State Commission would be the place to file the claim and if more than 1 crore, National Commission.
Ø A complaint is to filed by the aggrieved party before the consumer court against the doctor/hospital/medical staff,
Ø Notice is issued by the court to the opposite party for file for reply,
Ø Based on evidence and expert opinions, the consumer court decides the matter.
Claim Process before a Criminal Court
Under Sec. 304A of the IPC, death due to rash or negligent act is punishable which takes into account the acts of doctors and hospitals. Criminal trial can be initiated against the doctors for such alleged act.
Statutory Law References
Consumer Protection Act, 1986
Indian Penal Code, 1860
Barnett v Chelsea & Kensington Hospital Management Committee  2 WLR 422
Calcutta Medical Research Institute v. Bimlesh Chatterjee (1999) 1 CPJ 13 (NC)
Kedarnath Sethia v. Dr. P.S Hardra, 2000 (3) CPR 438
Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole 1969 SCR (1) 206
Cassidy v. Ministry of Health  2 KB 343
Important Things to Remember
ü There are consumer protection associations which take up cases of medical negligence to protect the rights of the patients;
ü Lawyer consultation is necessary before filing such claim;
ü The burden of proving medical negligence lies on the complainant;
ü To make the doctor liable, it has to be shown that the injury caused by him was imminent and no doctor in his ordinary prudence would have committed such act or omission;
ü The defense of consent is always used by doctors. Therefore, always check the process and kind of treatment before giving consent;
ü When you get treatment in government hospitals where you pay nominal or no fees, the hospital is not liable but the doctor is;
ü To support your claim, you got to have an expert opinion from another doctor.