Monday, 20 June 2022

legal opinion- do doctor protect their liabilities

                         SHORT NOTE ON LEGAL OPINION


Mahesh, a patient of Dr. Abhisekh died during treatment due to heart attack. Family member of Mahesh have alleged medical negligence against the treating doctor & further has filed a case in consumer court seeking compensation of 50 Lakhs. Dr. Abhisekh is insured with United India Assurance Company for his Professional indemnity. Dr. Abhisekh want to better compromise the case and let the insurance company make the payment to the patient. But insurance company says that the payment to the patient relatives be made only after the court verdict goes against the doctor. 


What Doctor should do to protect his liability. 


National commission of India pronounce 2 contradictory orders. In one hand National Commission ordered that Insurance  companies cannot be a party in case of Medical Negligence by the Doctors or Hospitals. On the other hand, National Commission ordered that insurance companies are justified in denying compensation on the account of not being a party in medical Negligence cases. 

In the case of Bajaj Allianz General Insurance Co. Ltd. V. Devendra Mohan Anand, patient died during medical treatment and relative of the deceased file a case of Medical Negligence against the Hospital & Doctors. In an appeal hospital mentioned that hospital and its doctors are insured under Medical Indemnity Insurance. Hospital ask the commission to make Insurance company a proper party in the case. The Commission stated that the medical negligence case filed against the Hospital and Doctors. Insurance company are not a proper party in such case. The hospital can sue Insurance company to claim damages under the medical indemnity Insurance when cause of action arises. The reason being delay in proceeding by making insurance companies a party in Medical Negligence case which violated the philosophy of speedy trial. 


In the case of Dr. Tarunjit Dutta Roy V. Branch Manager, New India Insurance Company Ltd. (2010) a incidence of medical negligence occurred during the period of Medical Indemnity Insurance but Doctor failed to proof that Doctor inform the insurance company in writing about the situation. Delay in communication in claiming Insurance is a term mentioned in the insurance policy where company is not liable to pay the compensation. The courts are not allowed to give liberal interpretation of the term mentioned in the insurance policy. There terms are literally interpret and there is no scope of liberal interpretation. The Doctor shall inform Insurance company as soon as doctor received notice from the court. 

Doctor should make insurance company a proper party in the cases of Medical Negligence. In case of medical negligence the insured shall inform the insurance company as early as possible on receiving notice from court. By making insurance company a party in the case we need not to proof in the court that we had informed insurance company at the first instance. In the case of CC Choubal V. Pankaj Srivanstav the court held that the insurance company is a proper and necessary party in the cases of medical negligence. That makes easy for complainant to claim compensation for their losses. National Commission also mentioned that in an order that insurance companies are the proper party in the case of medical negligence while claiming compensation for the losses by the complainant. 

While making insurance companies party to  a medical negligence case, insurance companies cannot challenge such actions of the court on the ground of no medical negligence has been occurred, quantum of negligence is high or less, compensation are not cover in such cases, etc. mentioned in the case of New India Assurance Co. Ltd. V. Hardeep Singh (2002). The court also held that the agony of the consumer must be ended at some stage. The National Commission also states that the insurance companies are liable on taking such excuses mentioned related to medical negligence. 


The courts and national commission should not pass such contradictory orders that we have seen above in the case study. These contradictory pronouncement of orders create chaos in the society. In case there are some specific cause of action arises the court and national commission should not disturb the previous ruling. In a Supreme Court Judgement, the court held that equal benches of courts cannot overrule the verdict of each other. In order to overrule verdicts the larger bench shall be appointed to deal with the case. 


In my opinion, Dr. Abhisekh shall inform the insurance company about the incident of medical negligence at first place. Then file an application to make insurance company a proper party in the medical negligence case on the account of Medical indemnity insurance. 


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