I fell of the stairs a couple of days back. It was hurting real bad and so I went to the doctor. He told me that it was a fracture and asked me to get a plaster done. I've been feeling uncomfortable ever since and thought I should visit a doc again. When i went to another doctor he told me that there was NO fracture in the first place. is there a legal recourse available against the first doctor? please advise.
Generally, the legal recourse available in cases of Medical Negligence is a Criminal complaint that can be filed against the doctor under Section 304-B of the Indian Penal Code as well as seek a civil remedy of compensation. The burden of proof in such cases is on the complainant. The law requires a higher standard of evidence than what is normally required to prove a case of negligence against the doctor, which is very difficult to establish.
Given the case at hand, the aggrieved patient may not have a sufficient cause to file a complaint against the first doctor. The first doctor had not committed a serious or gross negligence. There might be an error of judgment by him but not negligence. This proposition is supported by the settled law on medical negligence.
In Bolam v Friern Hospital Management Committee , it was observed that a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. A man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.
In Jacob Mathew v State of Punjab, it was held by Supreme Court that negligence in the context of medical professionals necessarily calls for a treatment with difference. A simple lack of care, an error of judgment or an accident is not a proof of negligence on the part of a medical professional. The Court made it very clear that to prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances, no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.
In Smt. Madhubala vs. Government of NCT of Delhi, it was observed by the Delhi High Court that in civil law, there are three degrees of negligence:
(i) lata culpa, gross neglect
(ii) levis culpa, ordinary neglect, and
(iii) levissima culpa, slight neglect.
Every act of negligence by the doctor shall not attract punishment. Slight neglect will surely not be punishable and ordinary neglect, as the name suggests, is also not to be punished. In cases of gross neglect, the position laid down in the Bolam case will be followed. Therefore, legal recourse may not be available against the first doctor.