How to File Medical Negligence Claims and WIN!

Negligence, in legal parlance, refers to the breach of a duty caused by the omission to do something which a reasonable man guided by those considerations that usually regulate human affairs would do or not do.  Simply put, it is the omission to do what the law requires us to do or the failure to do anything in the prescribed manner.

American Negligence Claims Can Include Even Toilet Paper

Have you ever walked into a restaurant, visited the toilet and found no toilet paper or soap in it? Have you filed for ‘negligence?’ You have a right to do that if the law in your country lets you. Don’t laugh. There’s nothing funny about toilet paper but in Henry Chai’s case (read 1987 Ohio App. LEXIS 5922)  against Wendy’s Restaurant, he stated that he wanted monetary compensation for ‘negligent infliction of emotional distress’ because he couldn’t find toilet paper in the restaurant’s toilet. He was forced to use his handkerchief, which caused him considerable distress! Got the point? Well, Henry Chai was smart enough to argue that not providing the toilet tissue was violative of the Ohio Food Service Rules. Guess what? He won! Suppose you visit a doctor to treat an illness. You respect the doctor’s diagnosis and adhere to the treatment charted out for you. In case your illness worsens or does not improve, does it entitle you to file a suit against the doctor alleging medical negligence? Not really, not unless you understand which side of the law is going to support your claim. It is important to know the law because negligence is a prevalent issue in nearly every sphere of life and economic activity.

Medical Negligence Claims in India

In Savita Garg v National Heart Institute, (2004) 8 SCC 56, the Supreme Court held that a hospital not having basic facilities such as oxygen cylinders would not be excusable. What does this mean for you as a patient? Simply put, if the hospital where you are being treated lacks basic facilities including hygienic rooms and toilets, you can sue. However, you need to examine whether the laws support you. For a court of law to decide whether a case of negligence has taken place, it is necessary to examine all the surrounding circumstances and facts.

Supreme Court Checklist for Doctors and Hospitals

In Bolam v Friern Hospital Management Committee, 1957 1 WLR 582, the law was stated as follows:

• A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.
• A man need not possess the highest expert skill. It is sufficient if he exercises the ordinary skill of an ordinary competent person exercising that particular art.

In a recent case, Martin F. D’Souza v Mohd Ishfaq, 2009 SCC 1, the Supreme Court laid down in detail the precautions that doctors and hospitals should take such as given below:

• Current practices, infrastructure, paramedical and other staff, hygiene and sterility should be strictly observed.
• No prescription should be ordinarily given without actual examination. Tendency to give prescription over the phone should be avoided except in a case of acute emergency.
• A doctor should make his own analysis including tests and investigations rather than relying only on the patient’s version of symptoms.
• A doctor should not experiment unless necessary and if so, the patient’s written consent should be obtained.