Civil Courts
The aggrieved patients can file a case against the doctor for monetary compensation for which the patient to pay court fees that depends upon the compensation sought.
Probably, due to near acceptance of medical negligence as inevitable by the patients and their relatives or local settlements, not many cases have reached the apex court of law in the past.
The legal remedies are based on the law of Torts, Section 1-A of the Fatal Accidents Act,
1855
36 and the Section 357 of Cr. P.C., 1973
37. But to avail it, an aggrieved patient have to wait for years and spend considerable amount of money on litigations.
The civil court cases take care the route of Sub-Court, District Court, High Court and Supreme Court.
36 Fatal
Accidents Act, 1855
This has adopted the
provisions of English Fatal Accidents Act of 1846 (re-enacted in 1976)
with a little modification. This Act aims of providing compensation to the
family of the deceased for loss occasioned by the death of a person caused
by the actionable wrong. In fact, it does not specify its application to
medical negligence cases but it is of wide import so as to apply to all
such cases including road traffic accident cases. In Dr. Laxman Balkrishna
Joshi v Dr. Trimbak Bapu Godhole and An0ther (AIR 1969 SC 128) and
Amalgamated Coal Field Ltd. v Mst. (Chhotibai & Others (1973) ACJ
365), this Act was used to award damages to the heirs of the deceased
patients.
Section
1-A of Fatal Accidents Act, 1855
Whenever the death of a person shall be caused by wrongful act, neglect or
default, and the act, neglect or default is such, as would (if death had
not ensured) have entitled the party injured to maintain an action and
recover damages in respect thereof, the party who would have been liable
if death had not ensued shall be liable to an action or suit for damages,
not withstanding the death of the person injured, and although the death
shall have been caused under such circumstances as amount in law to felony
or other crime.
37
Section 357 of Code of
Criminal Procedure 4973 (Act No. 2 of 1974)
(1) When a court imposes a sentence of fine a sentence (including a
sentence of death) of which fine forms a part, the court may, when passing
judgment, order the whole or any part of the fine recovered to be applied.
(a) ----------
(b) In the payment to any person of
compensation for any loss or injury caused by the offence, when
compensation is, in the opinion of the court recoverable by such person in
a civil court;
(2)
----------
(3)
When a court imposes a sentence, of which fine does not form a
part, the court may, when passing judgment, over the accused person to pay
be way of compensation, such amount as may be specified in the order to
the person who has suffered any loss or injury by reason of the act for
while the accused person has been so sentenced.
Indian Medical Association v V.P. Shantha
1995 (3) CPR 412: AIR 1996 SC 550: 1995 (3) CPJI: 1995 (6) SCC 651: JT
1995 (8) SC (Supreme Court decided on 13.11.1995)
Careers
