Medical councils have the power to conduct an inquiry
Dr K K Aggarwal
Cases of medical negligence against a doctor are usually referred to the council, which has the power to conduct an inquiry. Negligence as defined in civil law differs from that defined under criminal law. In Martin F. D'Souza vs Mohd. Ishfaq, 3541 of 2002, dated 17.02.2009, the Supreme Court of India held “… simple negligence may result only in civil liability, but gross negligence or recklessness may result in criminal liability as well. For civil liability only damages can be imposed by the court but for criminal liability the doctor can also be sent to jail (apart from damages which may be imposed on him in a civil suit or by the consumer fora). Some administrative requirements that the council takes into consideration during an inquiry are as follows:
· Is the complaint in the prescribed manner? Is it time-barred?
· Is it a frivolous complaint?
· Is the doctor registered under the council/other councils/MCI?
· Has the complainant filed a case in other courts? If yes, has he submitted all the required details? Is the matter sub judice?
· Is it a referred complaint (MCI, DGHS, Police, Courts)? If yes, what is the request: opinion or an Inquiry?
· What is the allegation? Professional misconduct, unethical act, medical negligence, violation of IPC, deficiency of service or administrative lapse?
· What is the actual complaint?
· What is the remedy asked for? Compensation or action (asked by the complainant), Opinion, if any criminal negligence (asked by the police), any deficiency of service (asked by consumer fora).
· Was the patient treated at a Government hospital or private hospital?
· Is there a possibility of a compromise (arbitration, conciliation, mediation) and withdrawal of the complaint?
· Was a post mortem done? If yes, is the report available?
· When was the complaint filed? Was it after the bill was received? Was the bill paid?
· Is the order/judgment that is being challenged a speaking order?
· Is the alleged doctor insured? Has the insurance lawyer involved in the case been informed?