A 24-year-old MBA student, mountaineer, and athlete walked into a doctor’s clinic with a fever. Ordinary, unremarkable — the kind of thing that happens to all of us. A month later, he was dead.
This is not a fictional story. It is a real case that Advocate Nishant Bharihoke has lived with — a case that, as he explains, should never have ended the way it did. The first doctor missed the most basic clinical sign of jaundice: yellowing of the skin and eyes. The doctor prescribed high doses of paracetamol, a drug toxic to the liver, without admitting the patient or reviewing his deteriorating reports. What followed was severe acute liver injury, rapid deterioration, and a death that was entirely preventable.
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What Medical Negligence Actually Means
Bharihoke clarifies that not every bad outcome inside a hospital is medical negligence. Doctors are not magicians. Medicine is an uncertain science. A patient can receive the best possible treatment and still not survive. A drug that works on one patient may fail on another. These are known complications, not medical negligence.
Medical negligence has three essential ingredients. First, there must be a duty of care — the moment a doctor examines a patient and begins treatment, a doctor-patient relationship is established and a legal duty arises. Second, there must be a breach of that duty — when the care provided falls below the standard that a reasonably competent doctor would have provided in the same situation. Third, that breach must result in measurable damage: long-term injury, disability, financial loss, unnecessary suffering, or death.
All three must be present. Without establishing all three, neither a civil nor a criminal remedy can be invoked.
The distinction between negligence and complication matters enormously. Giving the wrong medicine, ignoring visible signs of internal bleeding after surgery, administering treatment without reviewing test reports, providing oxygen from an empty cylinder — these are scenarios where medical negligence can be established. A treatment failing despite being medically correct is not.
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What Victims Can Actually Do
Bharihoke lays out three legal options available to families who believe they are victims of medical negligence.
The first is the Consumer Court. It is the most accessible route — court fees are relatively low, procedure is less complicated, and it is faster than a civil suit. Victims can claim medical expenses, future treatment costs, loss of income, mental anguish, and compensation for death. The limitation, Bharihoke warns, is that it is still a long, drawn process, with appeals possible at the State Commission and then the National Commission. But for most families, it remains the most practical starting point.
The second option is a civil suit for damages. Bharihoke advises this not primarily for claiming compensation but for the court’s powers to extract evidence — medical records, documents, and materials that a Consumer Court cannot compel. In several cases, critical evidence emerged only after civil court orders.
The third is criminal action under Section 106 of the Bharatiya Nyaya Sanhita, previously Section 304A of the IPC. Here, Bharihoke is frank. Convictions in medical negligence cases in India are rare, even in cases of death. The law is not victim-centric, societal bias favours doctors, and proving criminal negligence is an extremely difficult task. Where records have been forged, however, the situation changes — forgery pierces the shield that the law otherwise extends to the medical profession.
Before pursuing any of these routes, Bharihoke recommends approaching the State Medical Council. A medical board will investigate ethical violations, falsification of records, consent failures, and professional violations. Its findings can result in warnings, suspension, or cancellation of a doctor’s medical licence — and they generate evidence that strengthens subsequent civil or criminal proceedings.
The single most important first step for any family is to immediately collect all medical records in writing — discharge summaries, prescriptions, ICU charts, nursing records, consent forms, billing records, CCTV footage if possible, and every WhatsApp message or email exchanged with hospital coordinators. No hospital can legally refuse to provide these records. A document that seems completely irrelevant, Bharihoke cautions from personal experience, can turn out to be the most important piece of evidence in the entire case.
Medical negligence cases in India are long, exhausting, and structurally weighted against victims. But Bharihoke’s message is clear: justice is possible. Courts have awarded compensation of ten to twelve crore rupees in some cases. And a penalty of that scale, he argues, does more to deter negligent practice than imprisonment ever could.
Watch Advocate Nishant Bharihoke explain this in full in the video above.
Disclaimer : This story is auto aggregated by a computer programme and has not been created or edited by DOWNTHENEWS. Publisher: theprobe.in
