Medical negligence and patients' rights: what to do

Something went wrong in hospital: a surgery that should have been routine, a wrong injection, a patient left unmonitored, or a family member who died and nobody will explain why. You want answers, and perhaps accountability. This guide explains your rights, what the law treats as negligence, and the practical steps.

Your rights as a patient

• Emergency care. In Parmanand Katara v Union of India (1989), the Supreme Court held that every doctor, government or private, must give immediate medical aid to preserve life, without waiting for police formalities. In Paschim Banga Khet Mazdoor Samity v State of West Bengal (1996), it held that a government hospital's failure to give timely emergency treatment violates the right to life under Art 21.
• Information. You have a right to know your diagnosis, the proposed treatment, its risks and alternatives, and the expected cost, in language you understand.
• Informed consent. A doctor must take your consent (or your guardian's, if you cannot give it) before a procedure. Consent for one procedure does not allow a different one, except in a genuine emergency (Samira Kohli v Dr Prabha Manchanda, 2008).
• Medical records. You are entitled to copies of case papers, test reports and the discharge summary. Under the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, which still apply, a doctor must provide records within 72 hours of a request by the patient or authorised attendant Reg 1.3.2, MCI Regulations 2002.
• Confidentiality and dignity. Your medical information must be kept private, and you must be treated without discrimination on grounds such as caste, religion, gender, HIV status or disability.
• Second opinion and choice. You may seek a second opinion, and buy medicines or tests from any licensed source, unless there is a medical reason otherwise.

The National Human Rights Commission has published a Charter of Patients' Rights setting out these rights. Some states have adopted the Clinical Establishments (Registration and Regulation) Act, 2010, which regulates hospitals and can require them to display rates.

What counts as medical negligence

Medicine involves risk, and a doctor is not liable just because treatment failed. In Jacob Mathew v State of Punjab (2005), the Supreme Court said a doctor is negligent when they either lack the skill they claim to have, or fail to use reasonable skill and care, judged by the standard of an ordinary competent doctor in that field. Choosing one accepted method of treatment over another is not negligence.

Situations that may amount to negligence include:

• operating on the wrong part of the body, or leaving an instrument or swab inside;
• giving the wrong drug, dose or blood group;
• failing to monitor a patient after surgery or delivery;
• not referring a patient when the case is beyond the doctor's skill or the hospital's facilities;
• doing a procedure without consent, or without a qualified doctor.

Three kinds of remedy

1. Compensation: Consumer Commission

In Indian Medical Association v V.P. Shantha (1995), the Supreme Court held that paid medical services are "services" under consumer law. Free treatment in a government hospital is generally outside it, but treatment paid for by insurance is covered. Under the Consumer Protection Act, 2019, you file before the District, State or National Commission depending on the amount you paid, and you can file online on the e-Jagriti portal. File within two years of the incident. You do not need a lawyer, though one helps in complex cases.

2. Criminal complaint: police

Causing death by a rash or negligent act is an offence Sec 106(1) BNS (earlier Sec 304A IPC). The law gives a lower maximum sentence when it is done by a registered medical practitioner during a medical procedure. Criminal liability needs gross negligence, a very high degree of carelessness. Following Jacob Mathew, police usually obtain an independent medical opinion, often from a board of government doctors, before acting against a doctor.

3. Professional misconduct: State Medical Council

You can complain to the State Medical Council against a doctor's professional misconduct, such as refusing records or falsifying them. It can warn the doctor or suspend their registration. Appeals lie to the Ethics and Medical Registration Board of the National Medical Commission. This route punishes the doctor but does not pay you compensation.

You can use more than one route at the same time.

Step by step: what to do

1. Write things down now. Dates, times, what was said, and the names of the doctors and nurses involved.
2. Ask for records in writing to the medical superintendent. Keep a stamped copy of your request. If records are not given within 72 hours, note it; refusal is itself misconduct.
3. Keep everything: prescriptions, bills, receipts, reports, photographs of injuries.
4. If a patient has died in suspicious circumstances, inform the police and ask for a post-mortem before the body is cremated or buried.
5. Complain in writing to the hospital's grievance cell or medical superintendent.
6. Get an expert opinion from another qualified doctor on whether the treatment fell below the expected standard.
7. Choose your route (consumer, police, medical council) and file. For help, call 15100 for free legal aid.