Buyers beware!
How to tackle medical negligence
Pushpa Girimaji

MY father died of negligence in a government hospital and I want to file a case against the doctors who treated him and the hospital too. However, I am told that consumer courts do not entertain complaints against government hospitals. Is this the correct position?

There is no such bar on consumer courts entertaining complaints against government hospitals, except in cases where the treatment given to all patients in the hospital is absolutely free. Let me explain. The Consumer Protection Act excludes free service from the purview of the consumer courts and so the argument put forward by government hospitals in the initial years after the establishment of the consumer courts was that they were outside the jurisdiction of the consumer courts as they provided free service. In Indian Medical Association vs V.P. Shantha (CA No 688 of 1993) the Supreme Court examined this question and held that whether it is a government hospital or a private hospital, if the hospital rendered service free of any charge to all the patients, then the services rendered by it was outside the purview of the consumer courts. The payment of a token amount for registration purpose only did not alter this position.
Parents of a newborn, who they alleged died due to negligence of doctors in a hospital in Chandigarh
Parents of a newborn, who they alleged died due to negligence of doctors in a hospital in Chandigarh 

However, hospitals, including government hospitals, where charges were required to be paid by those who were in a position to pay and the service was rendered free for those who could not afford to pay, came under the ambit of consumer courts and even those who received free service in such hospitals acquired the right to sue to the hospital or the doctors for any negligence in the service rendered. Similarly, government hospitals that provided free service , but also maintained private wards on payment basis, also came under the ambit of the courts.

Thus almost all government hospitals are liable for negligent action because these days most of these hospitals either charge from the patients for some service or the other or have private paid wards. 

What kind of evidence do I need to gather in order to get compensation from a doctor for medical negligence? 

Under the CP Act, in order to get compensation it is not adequate to prove deficiency. The complainant must also show that such deficiency was caused as a result of the negligence of the doctor or the hospital or its staff. Negligence, the courts have held, is the breach of a legal duty to take due care. And ‘due care’ would mean the reasonable care and skill that a doctor should exercise. The breach of duty may be occasioned either by not doing something which a reasonable man, under a given set of circumstances, would do or by doing something which a reasonable man would not do. In cases where a wrong drug has been administered or an artery forceps has been left behind in the abdomen, negligence is so obvious that the principle of res ipsa loquitor (the thing speaks for itself) can be applied . 

But in most other cases, you need to really work on your complaint to prove negligence. So you need to first put together facts as you know them and then build up evidence to prove those facts in the consumer court. Besides the cash receipts and the prescriptions, you need to have all medical/hospital records, and also medical literature and opinion of experts to support your point. The internet is a great source of help in these matters. You can also request the court, if necessary, to call in certain experts or seek their opinion. Eventually, truth should prevail and justice should be done, but for that to happen, you need to put together your arguments in a manner that will showcase the truth.