Dr ALM’s Medicolegal Series – Part 2 – Expert Opinion

Abstract A patient was admitted in a hospital for fever with chills and was treated for Typhoid fever but the patient deteriorated and referred to another hospital in moribund state. In the second hospital she was diagnosed to be suffering from Malaria but the patient died. The husband of the patient moved District Consumer Forum which held the doctors and hospital negligent because of wrong treatment. Aggrieved by the order of the District Forum, the hospital preferred an appeal to the State Consumer Disputes Redressal Commission (FA No. 89 of 2005) and the insurance company, preferred another appeal (FA no. 1066 of 2005). The State Forum vide its order dated 31.10.2008 allowed the appeals and turned down the order of District Consumer Forum. The patient side moved National Commission. In the order of the State Commission there is a casual reference to the effect that “there is also no expert opinion to state that the line of treatment adopted by the appellant/opposite party No.1 Hospital is wrong or is negligent”. The National Commission turned down the order of State Commission and restored the order of District Forum.In the opinion of The National Commission, before forming an opinion that expert evidence is necessary, the Fora under the Act must come to a conclusion that the case is complicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by the members of the Fora without the assistance of expert opinion. This Court makes it clear that in these matters no mechanical approach can be followed by these Fora. Each case has to be judged on its own facts. The following points are stressed by The National Commision. Wrong diagnosis is negligence. Recordings in the case sheet is very important and Over writing in the case sheet leads to suspicion.The evidence act sections 61, 64,74 and 75 need not be applied in the consumer council. Expert opinion is required only in complicated cases of Medical Negligence and NOT in simple, straight forward cases and in complicated cases, before issuing a notice to the doctor, The Consumer Forum has to satisfy itself that there is prima facie medical negligence by referring the case to the medical board with concerned specialists. Where expert opinion is needed the consumer fora can refer the case to civil court. There should not be “straight jacket approach” in getting expert opinion in all cases of medical negligence and the power of seeking opinion is vested with the consumer council.