When a medical professional receives a legal notice alleging deficiency in service, it creates a great deal of stress and disturbance as their reputation is at stake. One who receives the notice or his lawyer should reply to the legal notice. A well-prepared reply will serve as a written statement to be filed in case a Consumer Complaint instituted against the hospital and doctor.
We cannot deny the fact that prolonged litigation adversely affects the reputation of a doctor, even if he wins the case. Hence there are several defences against the claim of medical negligence. Their applicability will differ from case to case; in other words, each case shall be treated on the merits of that particular case itself.
Common defences against medical negligence are as follows:
Contributory Negligence: If a patient is a contributor in committing a negligent act, the doctor shall not be liable for the acts committed by the patient. For example, not intimating the doctor of any ongoing medication.
Respected Minority Principle: A doctor pursuing a new treatment with the consent of the patient can have a valid defence to a medical negligence claim if a respected minority of professionals support this form of treatment.
Good Samaritan Laws: Although a doctor is expected to give the same amount of care even if he voluntarily aids someone, he shall be excused in case if he treats a patient under emergency conditions.
Statute of Limitations: This is not a defence but a limitation issued by the court of law as to the period during which a case can be filed for medical negligence.
The Wrong Party Is Being Sued: Liability has to be traced to the party of the property, or else there will be no case of negligence if the wrong party is being sued.
Pre-existing Injury: If the doctor claims and proves that the injury is the subject matter of the medical negligence claim; it is an injury caused by a previous illness.
Informed Risk: If the doctor has informed the risks involved in the surgery and the patient gives consent to perform the same, a doctor cannot be held liable for medical negligence if the injury is relating to that risk.
Uncertain Damages: The claim has to be calculated in order to award damages, in case of uncertain damages the court may not award any damages.
False Consumer Case: The medical professionals will have to rely on the case history, clinical records, indoor case papers, report for investigation, X-rays, etc. to prove their innocence. But the wrongdoer will have to pay for the damages caused to the doctor.