Q. When filing a medical negligence complaint in consumer court against a doctor and a hospital, is it compulsory to have an expert doctor’s opinion? Even in case of gross negligence, patients or their families do not get it. Doctors refuse to give their opinion in writing against other doctors. In such circumstances, what should the complainant do? Also, is the medical expert’s opinion binding on consumer court? Can such experts be cross-examined by the other side? What care should be taken while filing case of medical negligence against doctor and hospital? – Anagha Achrekar, Dadar (West) A.
Filing a medical negligence complaint against a doctor or hospital is a serious matter, and the complainant must exercise utmost care. The patient or their family should promptly obtain copies of the case papers from the hospital, as no doctor or hospital can legally refuse to provide them. Before filing a complaint, it is important to confirm, through a reliable source, whether there has indeed been negligence by the treating doctor or hospital.
Though not mandatory, obtaining a medical expert’s opinion in favour of the complainant is always advisable. However, it is true that such opinions can be difficult to obtain. In such cases, consulting a professional advocate experienced in medical negligence cases can be helpful. They may refer to standard medical textbooks, which carry strong evidentiary value due to their objectivity and reliability—unlike individual experts, who may be biased or unreliable.
The Consumer Commission may also be requested to seek an expert opinion from a medical college. In certain cases, the burden of proving negligence shifts from the complainant to the doctor or hospital. Where negligence is obvious and self-evident, the law presumes fault on the part of the doctor. Here, the doctor must produce evidence to prove they were not negligent. Such cases fall under the principle of ‘Res Ipsa Loquitur’ – meaning “the thing speaks for itself”.
This is especially relevant in situations where the patient is under anaesthesia, such as during surgery, and neither the patient nor their family can observe what’s happening. In unexplained cases – such as deaths on the operating table – this principle applies, and the complainant does not need to present expert testimony to prove negligence. Regarding another question, expert medical opinions submitted to consumer commissions are not binding.
These opinions serve as guidance to help the Commission arrive at a just conclusion. Doctors providing such opinions may be cross-examined by the opposing side. Alternatively, instead of oral cross-examination, parties may submit interrogatories, to which the experts are required to respond via affidavit. It is crucial to understand that not every failure in medical treatment amounts to negligence.
The law does not expect doctors to cure all patients – only to provide reasonable care. A failure to cure is not by itself negligence. What the law expects is ‘care’ not necessarily a ‘cure’. If a doctor or hospital fails to take reasonable care, leading to injury or death, it may constitute medical negligence. An act that no doctor of ordinary prudence would perform under similar circumstances – and which results in harm – meets the criteria.
Examples include refusing treatment, administering the wrong treatment, or denying emergency care without valid reason. However, patients and their families should avoid filing baseless or malicious complaints intended to harass or blackmail medical professionals.
(Advocate Shirish V Deshpande is chairman, Mumbai Grahak Panchayat. Queries can be sent to him on email: shirish50@yahoo.com)
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