Non-Clinical Support » Legal and Medico Legal issues

Preventive Measures: How to avoid Litigation

Prevention by professional indemnity

Insurance cover
Professional indemnity insurance is a tool which will not only meet the claim of compensation awarded against a doctor/hospital but also gives a sense of mental security that even if some negligence is proved the insurance company will take care of it.

Please clarify in detail about different premium rates of insurance in case of individual insurance, doctor/nursing home/hospital with qualified staff and unqualified but trained staff, because at the time of paying compensation, many such enquiries will be made by the insurance company.

The insurance companies not only pay compensation to the aggrieved party but also arrange for legal help from advocates because there are instances where doctors have joined hands with aggrieved party for monetary gains on the grounds that it is the insurance company, not the doctor, who is to pay the compensation.

Here we must understand that it is not just the money paid as compensation which is important; the doctor's professional reputation is also at stake.

Prevention by people support groups
By forming societies to fight against all these, we not only get a type of social security but regular fellowship will prohibit the doctors speaking against their own colleagues. Such forums can be used from time to time for discussion of the provisions of various Acts, cases fought and their results and the lessons to be learned from them.

These people support groups can also be used as a pressure group on the dissatisfied patient as he is also a human being and is bound to yield to certain social pressures.

General guidelines for legal defense
Not defending yourself and/or your hospital is itself an act of negligence. We should always make all possible points in defense at the first instance of replying to the complainant. Points made subsequently, during the hearing of the case, are liable to be rejected.

Technical defenses

• The medical service rendered was free of charge (caution: this is now applicable in certain situations only).
• Concurrent adjudication in another court.
• The court does not have pecuniary/territorial jurisdiction.
• Complaint is time-barred.
• Complicated issues involved, requiring recording of expert evidence; hence the case should relegated to a civil court. Such a plea must be made at the beginning of the trial.
• The complaint is frivolous and vexatious and liable to be dismissed under section 26 of the Act.

Inform your insurance company in writing with a copy of the complaint.

Factual defenses

• Mention your qualifications, training, experience, expertise etc., and support these with relevant documents.
• Mention infrastructural facilities, special facilities, back-up and support these with relevant documents.
• Complainant has not come to the court with 'clean hands ' i.e. he has suppressed material facts such as previous illness, treatment etc.
• Inconsistency between notices sent directly or through consumer groups and the complaint made in the court.
• Written evidence of consent of the patient/relative/attendant to assumption of inherent and special risks in the treatment.
• Mitigating circumstances of the case; viz. there was an emergency, or lack of facilities (e.g. rural area), or no one to give a correct history of the patient's illness etc.
• Burden of proof of:
  • duty of care
  • breach of that duty
  • causation
  • damage, etc. is on the complainant.
• Reasonable knowledge, skill and care exercised (Rely/quote standard text books with attested photocopies).
• Consolation / treatment of patient by other doctor(s) / other systems of medicine simultaneously.
• Many other reasons/more than on reason/for occurrence of damage.
• Contributory negligence.