Something went badly wrong at the hospital — and the first question the law asks is not the one you are asking

Negligence and a bad outcome are not the same thing

This section is the hardest one to read and it has to come first, because every other decision on this page depends on accepting it.

Medicine is not an exact science. The same treatment, correctly given, produces different results in different people. Conditions present atypically, bodies respond unpredictably, and a proportion of adverse outcomes occur without anybody having done anything wrong. A patient can be treated entirely properly and still die, and a family can be utterly certain that something was mishandled and be wrong about it.

So the law does not ask whether the outcome was terrible. It asks whether the treatment fell below the standard of a reasonably competent practitioner in that field. Those two questions have different answers far more often than people expect, in both directions — there are devastating outcomes with no negligence at all, and there is real negligence in cases where the patient survived and nobody ever complained.

The standard the courts actually apply

In Jacob Mathew v. State of Punjab (2005) the Supreme Court set out the approach that is still applied, drawn from the English authority ordinarily referred to as the Bolam test. Three questions, in order:

Read what that excludes. It is not the standard of the most eminent specialist in the country; it is that of an ordinarily competent practitioner. It is not judged with hindsight; it is judged on the knowledge available at the time. And where there is more than one accepted approach, a doctor who adopts one of them is not negligent merely because another doctor, or a later doctor, would have chosen the other.

That last point defeats more complaints than any other, and families are rarely warned about it. A second doctor saying “I would have operated earlier” is not the same as a second doctor saying “no competent practitioner would have waited”. The first is a difference of opinion. Only the second is evidence of negligence.

What a doctor actually undertakes

When a doctor accepts a patient, what is undertaken is that he possesses the requisite skill, that he will use it, and that he will exercise reasonable care in deciding whether to take the case and in the treatment he gives. He does not undertake that the patient will recover.

This is why complaints in the shape of “we spent this much and he still died” do not travel, however honestly they are felt. The amount paid establishes that a service was rendered for consideration. It says nothing about whether the service was competent.

It is also why a page like this cannot tell you whether you have a case, and why anybody who tells you on the telephone that you have a strong one is either guessing or selling you something. Nobody knows until the record has been read by somebody qualified to read it.

When the thing speaks for itself

There is a category where the ordinary difficulty falls away, because the event itself is one that does not happen if reasonable care is taken.

In cases of this kind the event points to negligence and the practical burden of explanation shifts to the side that had control. If your matter is one of these, say so in the first sentence of the first meeting, because it changes how the whole file should be built.

One warning. This does not extend to every serious complication. Known risks that occur despite proper care — and there are many, in every field — are not in this category, and a complaint that treats them as though they were will be answered with the literature.

What is not negligence — said plainly

A page that only lists what counts would be dishonest. Most of what makes families angry is real, and some of it is wrong, and almost none of it is negligence in the legal sense. Knowing the difference saves years.

Notice how often the honest answer is “that is a different claim, and it may be a better one”. Families who insist on calling everything negligence frequently abandon the grievance they could actually have established.

Consent — a separate ground, and often the stronger one

Many families arrive convinced the treatment was botched and leave with a case about consent instead, because that is where the record actually fails.

In Samira Kohli v. Prabha Manchanda (2008) the Supreme Court held that consent must be real and valid, which means that the patient must have the capacity and competence to consent, that the consent must be voluntary, and that it must be given on the basis of adequate information — the nature and purpose of the procedure, its benefits and effects, the alternatives available, and the substantial risks and the consequences of refusing.

The case itself decided three things that come up constantly:

So when you obtain the record, read the consent form as carefully as the operation notes. What was it consent for? Is it signed by the patient? Is it dated and timed before the procedure? Is it a printed form with blanks left empty? Was anything explained, and does anything in the file record that it was? These are questions of paper, and paper is checkable.

Get the record first, and get it before you complain

If this page changes one thing you do, it should be the order of your first two steps.

People complain first and ask for records second. That is backwards. The moment an institution understands that a claim is coming, obtaining a complete file becomes a negotiation rather than an administrative request, and the useful weeks are spent on letters instead of on an expert reading the notes.

Ask in writing. Date the request. Hand it in and take a receipt, or send it by a mode you can prove. Ask for a complete and legible set and say so in those words, because what arrives is often partial and often illegible. And check what you receive against the list above rather than assuming a thick envelope is a full file.

If the record is not given

A patient is entitled to the records of their own treatment, and professional conduct regulations require a practitioner to supply them on request within a stated period. We have not printed that period here, because the regulatory framework in this area has been changing and a number copied from an old page helps nobody.

What to do does not depend on the number:

Keep every refusal and every silence. Withholding a record is not neutral: a forum asked to draw an inference about what the missing notes would have shown is considerably more willing to do so where the institution declined to produce them, and your dated letters are what establish that.

The one thing that decides these cases

An expert medical opinion. Nothing else comes close.

Not the family’s certainty. Not what a doctor said sympathetically in a corridor. Not a second hospital’s remark that the patient should have been brought sooner. What is needed is a written opinion from a competent practitioner in the same field, who has read the complete record and who states what a reasonably competent practitioner would have done and where this treatment departed from it.

Two honest difficulties, stated rather than hidden. Doctors are frequently reluctant to give such opinions against other doctors, and finding somebody willing takes time and sometimes money. And an opinion that merely says “I would have done it differently” is of no use — it has to address the standard.

There is also a reason the criminal road makes this unavoidable. In Jacob Mathew the Supreme Court held that a private complaint against a doctor may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor. So on that road the opinion is not merely persuasive, it is the entry condition.

Delay and missed diagnosis

Not every case is a botched procedure. A large share — and a share that is under-complained about — is about something that was not found, or was found late.

The standard is the same one: not whether the diagnosis was right, but whether a reasonably competent practitioner, presented with what this patient presented with, would have investigated further. Diagnosis is genuinely difficult and conditions present atypically, so being wrong is not by itself being negligent. What the record is examined for is different:

There is a second question in these cases that is often decisive and is easy to forget: even if the diagnosis had been made on time, would the outcome have been different? Where a condition was already beyond treatment, delay may have caused distress without having caused the loss — and the expert opinion has to address that squarely rather than avoid it.

Elective, cosmetic and dental treatment

These matters behave differently from emergency medicine, and families are usually on stronger ground than they realise — though not always for the reason they think.

The legal standard does not change: a cosmetic surgeon or a dentist is judged as a reasonably competent practitioner in that field, and here too no result is guaranteed. What changes is the surrounding record. Elective treatment is chosen, not forced by circumstance; there is time to explain; there is usually marketing material, a consultation, photographs, a quotation and a written plan. All of that is document, and document is where these cases are won.

So the ground that succeeds is frequently consent and information rather than technique. What was the patient told the procedure would achieve? What risks were explained, and does anything in the file record that they were? Was a specific outcome promised, in writing or in advertising? Was the practitioner qualified to do what was done? A promise of a particular result made in a brochure sits very differently from the same conversation in an emergency ward.

The same logic applies to dental work, to hair and skin procedures, and to elective surgery generally. Keep every quotation, message, photograph and piece of promotional material, because in this category they are not background — they are the evidence.

Three roads, and only one of them pays

Before choosing, answer a question most families have never been asked: what do you actually want? Compensation, punishment, or a finding against the doctor professionally? Those go to three different places.

They are not strictly alternatives — more than one can be pursued — but doing so has consequences for how each is run, and that is a conversation to have with an advocate before anything is filed rather than after.

The compensation road, in one paragraph

Medical services have been treated as service under consumer law since Indian Medical Association v. V.P. Shantha (1995), subject to an exception where treatment is rendered entirely free of charge to everybody. So most private treatment, and treatment where any charge was paid, falls within it — and this is the road most families should be on.

How a consumer commission actually works — where you file, the limitation period, the fact that the whole case goes in on affidavit, what can and cannot be ordered, and the appeal — is set out in detail on our consumer court page, and this page deliberately does not repeat it. Read that page alongside this one. We prepare the complaint and the paper book to your advocate’s instructions.

One point specific to medical matters. A consumer complaint is decided largely on documents and affidavits, without the long oral evidence a civil suit involves. That is an advantage for a family with a well-prepared file and an expert opinion, and a disadvantage for one relying on what somebody will say in the witness box. It is another reason the record comes first.

The criminal road, and what changed in 2024

Section 106(1) of the Bharatiya Nyaya Sanhita, 2023 punishes whoever causes the death of any person by a rash or negligent act not amounting to culpable homicide, with imprisonment which may extend to five years and fine.

Its proviso is new, and it matters here: if such an act is done by a registered medical practitioner while performing a medical procedure, the punishment may extend to two years and fine. The Explanation defines a registered medical practitioner by reference to medical qualifications recognised under the National Medical Commission Act, 2019, with the name entered in the National Medical Register or a State Medical Register.

The threshold, however, has not moved. Jacob Mathew held that although the word “gross” does not appear in the text, negligence or recklessness in criminal law must be of such a high degree as to be gross, and that the expression “rash or negligent act” has to be read as qualified by that word. Ordinary negligence — enough to succeed before a consumer commission — is not enough to convict.

The practical warning is simple. Families who file only a criminal complaint frequently end with neither punishment nor money, having spent the period in which the compensation route was open. If what you want is compensation, the criminal complaint is not the road to it.

The medical council road

The third road is a complaint to the State Medical Council, with an appeal to the national body, alleging professional misconduct under the conduct regulations.

What it can do is act on the practitioner’s registration — a warning, suspension for a period, or removal of the name from the register. What it cannot do is award you a rupee. It is the right road where your concern is genuinely that this person should not be treating patients, or should not be treating them in this way, and the wrong road if what your family needs is money.

It is also, for some families, the only road they can face. It costs little, it does not involve litigation, and it produces a finding by the profession itself. There is nothing wrong with choosing it for those reasons — as long as it is chosen knowingly rather than because somebody said it was the same thing as a case.

Who you are complaining against

Naming too few parties is the commonest structural error in these files, and it is usually irreversible by the time anybody notices.

The point of the table is not that you should name everybody. It is that the decision should be made after reading the record, by somebody who knows what the record shows about who did what, and not from the name printed on the hospital signboard.

The first week

Medication and prescription errors

A category worth separating out, because the evidence is unusually concrete and people throw it away.

The failures here are of a kind a court can examine without much medical argument: a drug dispensed that is not the one prescribed; a dose written or given wrongly; a drug given despite an allergy recorded in the same file; a known interaction with something the patient was already taking and which the notes record; an infusion given at the wrong rate. Unlike a judgement call about treatment, most of these are simple comparisons between two documents.

Note that the pharmacy may be a separate party from the hospital and the doctor, and where a dispensing error is alleged it belongs in the complaint in its own right. This is one of the situations where naming too few parties quietly loses the case.

Getting treatment continued while a dispute is running

A practical problem nobody writes about: the patient still needs care, and the family is now in conflict with the people providing it.

Two things to keep separate in your own mind. Treatment now, and the claim about treatment then. It is entirely legitimate to move to another hospital and to pursue a complaint about the first, and it is equally legitimate to continue treatment where you are while a complaint proceeds. What is not sensible is delaying necessary care while waiting to see how a dispute develops.

Three practical points. Take a complete set of records with you when you move, because the new treating team needs them clinically and you need them evidentially, and the two purposes do not conflict. Tell the new doctors the clinical history, fully and neutrally — not the grievance, which is not their business and may make them reluctant. And be aware that a second institution’s notes, made without any stake in the dispute, are frequently among the most persuasive documents in the eventual file, precisely because nobody wrote them with a case in mind.

When the patient has died

Two things change, and both are procedural rather than about the merits.

First, the claim is brought by the legal heirs. You will need the death certificate and proof of who the heirs are — a legal heir certificate is the usual document — and where there are several heirs they should be before the forum rather than one member acting alone and discovering the difficulty at the end.

Second, the cause of death becomes a contested question in a way it is not while the patient is alive. Where a death is unexpected and its cause is disputed, a post-mortem report can settle what no amount of argument later will, and the decision about one is taken in the hours after the death, by a family that is in no state to be making decisions. This paragraph exists so that somebody has read it before that day rather than after it.

If the body is not being released

Detaining a body against an unpaid bill is not a lawful method of recovering money, and it is a separate grievance from the negligence.

Deal with it as an emergency and on paper at the same time. Record what is being said and by whom. Put the demand to the hospital’s administration in writing, however briefly, so there is something on record. Escalate at once — to the administration, and if necessary further. We prepare complaints and applications, but this is a situation measured in hours, so make the calls first and have the paper follow.

And one specific warning, because it happens: do not let the urgency of that moment become the reason you sign a document giving up your claims. A family in a hospital corridor at two in the morning is not in a position to settle anything, and a document signed there will be produced later.

Government hospitals

Treatment rendered entirely free of charge to everybody has been treated as falling outside the consumer definition. But that is a narrower proposition than it sounds, because charges are levied in many government facilities, and the answer turns on what was actually paid in your case rather than on the word “government”.

Government treatment also brings two real advantages. The right to information is available, which is a genuine lever for obtaining records and internal documents that a private hospital would simply refuse. And the records are official records, which changes how they are proved.

So do not assume you have no remedy because the treatment was free or nearly free. Establish what was paid, obtain the file, and take advice on which road remains open.

How compensation is thought about

We print no figures, no formula and no multiplier on this page, and the reason is not caution for its own sake. Families arrive at settlement meetings with a number copied from a news report about a different case, and it makes agreement impossible.

What can usefully be said is what is looked at. Expenses actually incurred, evidenced by bills. Expenses that will be incurred, where there is continuing care or disability. Loss of income, where the patient was earning and can no longer earn as before. In a death, the dependency of those who relied on the deceased. And an amount for pain, suffering and loss of amenity, which is a matter of judgement rather than arithmetic.

Which is why the bills, the income records and the evidence of continuing need are part of the file from the beginning, not documents to be assembled at the end. Where there is lasting impairment, a disability certificate becomes relevant, and where an insurer is involved the claim documentation is a parallel track worth keeping in order.

When the hospital offers a settlement

It happens more often than people expect, and frequently early — before the family has the complete record and before anybody has any idea what the matter is worth.

There is nothing wrong with settling. There is a great deal wrong with settling in ignorance.

Take the document to an advocate before you take the offer seriously. An hour spent on that is the cheapest hour in the whole matter.

Going public

Posting produces responses where letters did not, and it carries two costs that are rarely considered in the moment.

The first is a defamation claim, which arrives as a notice and then as a suit, and turns a grieving family into a defendant. The second is subtler and more damaging: everything you post is a written statement you may later have to prove, and the other side will produce it at the hearing against the version in your complaint. A post written in the first week of grief rarely matches a complaint drafted in the sixth month with an expert opinion in hand.

If you do post, keep to facts you can support from documents, avoid asserting conclusions no expert has yet given, and never publish another patient’s record. If you receive a notice over a post, take it to an advocate rather than replying to it yourself; we prepare replies to instructions.

If you are the doctor or the hospital

This page is written mainly for patients and families, but the other side reads it too, and the advice is short and unsentimental.

Do not touch the record. Not to clarify, not to complete, not to add what everybody remembers happened. A late or altered entry is the single most damaging thing found in these matters, and it converts a defensible case into an indefensible one faster than the underlying allegation ever could. If something genuinely needs to be recorded now, it is recorded now, dated now, and described as being recorded now.

Notify your insurer immediately, because professional indemnity policies carry notification requirements and late intimation is a standard ground for declining. Reply through an advocate rather than personally, however reasonable a personal explanation feels. And do not approach the family to settle it informally before you have taken advice; the conversation will be described later, and not as you remember it. The directory is open to you as much as to anybody, and nothing on it was bought.

If paying for an advocate is the difficulty

There is a cruelty specific to this subject: the treatment has usually already consumed whatever the family had, and in a death it has also removed the person who was earning. That is the exact situation the free legal services system was built for. Some categories qualify whatever their income; others qualify below a limit the State Authority notifies, which is revised and which this page therefore does not print. Every court complex has a legal services committee sitting in it, the Delhi State Legal Services Authority publishes the current limit along with a helpline, and walking up to that desk costs nothing and commits you to nothing. Ask there, or ask us on the call and we will tell you which desk.

Keeping the file

One folder, arranged the way the case will be argued rather than the way the papers arrived. Section one: the medical record, in date order, exactly as supplied, with a note of what was asked for and what was not given. Section two: your dated request letters and every reply. Section three: bills, receipts, income records and anything showing continuing cost. Section four: your own written sequence of events, made early. Section five: the expert opinion when it comes.

The reason for that structure is that an advocate reading it should be able to see, in five minutes, what the treatment was, what is said to be wrong with it, what it cost, and what is missing from the file. Most folders handed across a desk in these matters do not allow that, and the first meeting is spent on sorting rather than on the case.

Mistakes that cost families the case

What to collect before anybody drafts

The complete medical record as set out earlier in this page, with a written note of what was requested and what was not supplied. Every bill and receipt, including for medicines and investigations bought outside. Proof of identity, and of relationship where the patient has died, with the death certificate. Income records where a loss of earning is claimed. Photographs where there is a visible injury or condition. Prescriptions, medicine strips, films and discs. Messages and call records with the hospital or doctor. Names and numbers of everyone present. Your own dated account of events. And the expert opinion, once obtained — which is the last thing collected and the first thing read.

Add affidavits where the forum requires evidence on affidavit, sworn before an oath commissioner, translations of anything not in English or Hindi, and certified copies of anything already on a court or commission file.

Our part of a medical matter

Paper, and only paper. Nobody here is an advocate or a doctor, nobody can tell you whether the treatment was negligent, nobody appears before any forum, and nobody here will read your medical record and give you a view on it — that is precisely the thing that requires a qualified practitioner. What we do is the written request for records, the legal notice and the reply to one, the consumer complaint or the plaint typed to your advocate’s instructions, the applications, the affidavits and their attestation, the information applications for a government hospital, translations, certified copies, the paper book compiled, indexed and paginated, and where it comes to that the appeal and execution papers.

What is argued, and whether to argue it at all, belongs to counsel. Court work is for your advocate, whose fee is engaged and paid by you directly; we do not quote, collect or share it. The directory is free to open and free to write through, it runs A to Z, and no listing on it was bought.

What we decline in a medical matter

What we charge, said up front

Open any service page and the price for that document is on it, before you order and before you speak to anybody. Anything payable to a commission, an oath commissioner or a public office is listed on its own, away from our figure, because it is not our money and it does not come to us.

You are told the whole figure before work begins and none of it is payable in advance. And on a medical matter we will say something that costs us the larger job more often than in any other area: until the complete record is in your hands, there is very little worth drafting, and a notice sent before you have the file usually achieves nothing except telling the other side to prepare. If you call us on the day it happened, what you will hear is how to ask for the record — and that advice is free.