Medical Negligence
Evidence Checklist

Get the complete medical records first — everything depends on it

Nothing in a medical negligence claim matters more than the records, and nothing becomes harder to obtain once the hospital understands a claim is coming. Request them the moment you suspect something has gone wrong, in writing, before you say anything about litigation.

The Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 — which the National Medical Commission continues to operate — require that where a request is made for medical records by the patient, an authorised attendant or a legal authority, the documents be issued within 72 hours. Failure to maintain indoor patient records for three years, and refusal to supply them within 72 hours on request, are treated as professional misconduct.

1. 1Write to the hospital medical records department requesting the complete file, and date the letter. Deliver it by hand against acknowledgement, or by email plus Speed Post with Registration and Proof of Delivery.
2. 2Ask for everything, itemised: admission notes, case sheet, doctor's progress notes, nursing notes, vitals charts, consent forms, operation notes, anaesthesia records, investigation reports and imaging, medication and administration charts, referral notes, discharge summary and the final bill.
3. 3Ask specifically for imaging on physical media or as DICOM files, not only as printed reports.
4. 4Note the date of the request and count 72 hours. If nothing arrives, write again referring to the 72-hour requirement.
5. 5If the records are still refused, escalate to the State Medical Council, and say in the complaint that refusal to supply within 72 hours is itself professional misconduct.
6. 6Check the file you receive for completeness against your itemised list, and record in writing exactly what is missing.
7. 7Where records appear altered, overwritten or inserted out of sequence, preserve the original copy exactly as received and note the anomalies.

Expert opinion: what turns a bad outcome into a provable case

Medicine has bad outcomes that involve no negligence at all. The legal test is not whether the result was poor but whether the practitioner exercised the ordinary skill of a reasonably competent professional in that field — the standard drawn from Bolam and applied in India in Jacob Mathew v. State of Punjab (2005).

That is why an expert opinion matters so much. The Supreme Court in Jacob Mathew held that a private complaint against a doctor should not ordinarily be entertained unless the complainant produces prima facie evidence in the form of a credible opinion from another competent doctor supporting the charge, and the National Consumer Disputes Redressal Commission has repeatedly treated expert evidence as crucial in these cases.

• Obtain an opinion from a doctor in the same speciality, in writing, on their letterhead, with their qualifications and registration number.
• Give the expert the complete records, not a summary — an opinion based on a partial file is easy to attack.
• Ask the opinion to identify the standard of care expected and the specific departure from it, rather than simply commenting that the outcome was unfortunate.
• Ask it to address causation: whether the departure caused or materially contributed to the injury.
• Where the case is clear on its face — a retained instrument, wrong-site surgery, a transfusion mismatch — expert evidence may be less critical, but obtain it anyway.
• A commission can also refer the matter for an expert or medical board opinion of its own; a well-founded expert opinion at the outset makes that reference far more likely to help you.

Informed consent as a separate ground

A claim can succeed on consent even where the treatment itself was competently performed. Consent in Indian practice must be real: the patient must have been informed of the nature of the procedure, its material risks and the alternatives, and must have consented to what was actually done.

This is worth examining separately in every file, because consent documentation is frequently thin — a pre-printed form signed on admission, covering a procedure different from the one performed, or signed by a relative when the patient was competent to sign.

• Was a consent form signed, and by whom — the patient, or a relative while the patient was competent?
• Does the form describe the procedure actually performed, or a different or broader one?
• Were the material risks that materialised specifically disclosed?
• Were alternatives, including conservative management, explained?
• Was consent taken with enough time to consider, or immediately before the procedure?
• Was a separate consent taken where the procedure was extended or changed intra-operatively?
• Is the form in a language the patient could read, or was it explained and recorded as explained?

Two separate tracks: compensation and professional conduct

Complainants often assume that a complaint to the medical council will get them compensation, or that a consumer complaint will get the doctor struck off. Neither is right. The two tracks do different things and can run in parallel.

Limitation, jurisdiction and what the case will cost

Worked examples