Medical Negligence and Compensation - Including Consumer Protection Act, 2019

The Fourth Edition of this book saw light of day exactly after a decade of publication of the previous edition. The Third Edition, which appeared in the year 2004, had to be reprinted twice. Although demand for a new edition had been coming from various quarters but the chief author could not find time to undertake the job because of being preoccupied with care of patients. During the last decade and a half a sizeable number of judgments on medical negligence have been handed down by the Supreme Court--some of which being leading ones-deciding important questions of law on the subject. Some of such judgments are being commented upon hereunder. In Martin F. D'Souza v Mohd. Ishfaq,' the court laid down that it is necessary in all cases of medical negligence (civil or criminal) to refer the matter to a competent doctor or committee of doctors, before sending notice to the doctor/hospital. But another bench of the Supreme Court in V. Kishan Rao v Nikhil Super Speciality Hospital, differed from the view in Martin F.D'souza, (supra) with the following observations: "We are of the view that aforesaid directions are not consistent with the law laid down by the Larger Bench in Mathew. In Mathew (supra),  the direction for consulting the opinion of another doctor before proceeding with criminal investigation was confined only in cases of criminal complaint and not in respect of cases before the Consumer Fora. The reason why the larger Bench in Mathew (supra) did not equate the two is obvious in view of the jurisprudential and conceptual difference between cases of negligence in civil and criminal matter. This has been elaborately discussed in Mathew (supra). This distinction has been accepted in the judgment of this court in Malay Kumar Ganguly." (See paras 133 and 180 at pages 274 and 284 of the report). The medical fraternity should find solace from the above Supreme Court judgment that criminal cases can no longer be filed indiscriminately against doctors without obtaining prior expert opinion.