heatherdobbie7
in Consumer Law
Asked April 18, 2016

How to file a new case for Medical Negligence?

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My Friend has this query: Sir I am a case of a SpinBifida by birth and its associated problems. I had filed a complaint in State Consumer Forum Mumbai in the year 2003 and appealed till Supreme Court of India to get justice in my case. But to no avail I did not get justice from anywhere. I also filed the complaint in Maharashtra Medical Council, Medical Council of India but they dismissed my case giving the decision as there is no medical negligence by the doctor. The main reason for all this was, no doctor was ready to give his opinion in writing that what exact negligence has happened in my case and no court or the medical council gives decision without evidence. Result of this I lost the case finally in Supreme Court after filing Special Leave Petition and subsequent review petition. In recent days with the help of some NGO and some well­wishers I have found some good doctors and forensic experts who are ready to give their opinion in writing that what exact medical negligence has happened in my case. But now as I have approached till Supreme Court to get justice in my case I have not left with any option to reopen my I need your guidance and want to know if I can file a new case in NCDRC. with new evidences pertaining to my medical negligence co­relating my present health condition with the past medical negligence.. If I cannot file a new case then can I file a Writ Petition in Supreme Court in my Medical Negligence Case.

Answer 1

Answer Framed by Apoorwa Shankar Iyer, Lawfarm Researcher:   You cannot present the evidence gathered by you, with the help of the NGO, as part of the case already filed by you as you have exhausted the appeal options available to you. Though there exists one last option of 'curative petition' which is the last judicial resort whereby the Supreme Court might accept to review its judgment. But this ‘curative petition’ is accepted by the Hon'ble Supreme Court in the rarest of rare cases and particularly in cases of national importance.   Hence, it would be advisable that you initiate a fresh case. You need to file a new case on different grounds so as to avoid dismissal of the case at the very initial stage on the ground of 'res judicata'[1]. This principle prevents any party being prosecuted for the same offence more than once. As you had filed a case in the Consumer Forum, it is clear that you were pursuing a civil suit dealing with the deficiency of service and medical negligence.   Medical negligence cases can be both criminal cases as well as civil cases. However, medical negligence to be taken up as a criminal case under the Indian Penal Code, 1860 needs the offence to be a grave misconduct on the part of the doctor causing life threatening impact over the patient(s). Hence, it is essential first, to ascertain the degree of medical negligence in your case.   As indicated by the facts presented by you, a civil suit seems more suitable in this case. As you need to pursue another course of action, you can now file a case based on 'torts'. Though tort law is uncodified in India, it is largely recognized by the Indian Courts. It basically provides remedies for civil wrongs and provides compensation to damages suffered.   The Court has held that the definition of negligence in torts involves three constituents: (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort. [2] Now, as stated by you, since there exists evidence indicating that there has been medical negligence and as a result of which you are immensely suffering, all the three constituents mentioned above are positively present in your case. Hence, you can file a civil suit in the trial court on the grounds of professional negligence as per the Indian tort law.   ________________________________________       [1]Available at: http://www.advocatekhoj.com/library/bareacts/codeofcivilprocedure/11.php?Title=Code%20of%20Civil%20Procedure,%201908&STitle=Res%20judicata, [2] In Jacob Mathew v. State Of Punjab & Anr.  Appeal (crl.) 144-145 of 2004.  
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