Honorable Supreme Court has explicitly recommended such tort reform. The legislature must act.

Supreme Court:
There is a need to protect doctors from frivolous or unjust prosecutions in the interest of the entire society. (Jacob Mathew)

1. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court as a credible opinion given by another competent doctor to support the charge of rashness or negligence by the accused doctor.
    
2. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, get an independent and competent medical opinion preferably from a doctor in government service, qualified in that branch of medical practice who can normally be expected to give an unbiased opinion applying the Bolam test to the facts collected in the investigation. (Jacob Mathew)

Following the principle laid down by the three Judge Bench in Jacob Mathew, a two Judge Bench of the Hon'ble Supreme Court, in Martin D'Souza, extended the benefit of it to civil medical negligence complaints under the CPA Act.

By implementing laws laid down by the Supreme Court as in the cases of Jacob Mathew and Martin D'Souza frivolous complaints of medical negligence should not be entertained. The legislature may enact laws on the directions of the court. The Supreme Court has already stated:

"Statutory rules or executive instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India".

Jacob Mathew papa 117. We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer Fora (whether District, State, or National) or by the Criminal Court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or Criminal Court should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the concerned doctor/hospital. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. Emphasis added

The rulings in the aforesaid two judgments closely and virtually verbatim correspond to the law enacted in the State of Connecticut, USA, to prevent vexatious medical negligence suits. Before a plaintiff can file a medical malpractice action in the State of Connecticut, Connecticut General Statutes Section 52-190a requires the plaintiff to make "a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant."

If the plaintiff determines that good faith exists and files a suit, the complaint must "contain a certificate, on a form prescribed by the rules of the superior court, of the attorney or party filing the action that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant."

The pre-complaint inquiry and good faith certificate requirements for a medical malpractice action were enacted as part of tort reform legislation in 1986. The general purpose of Section 52-190a was to discourage the filing of baseless lawsuits against health care providers. Good faith may be shown to exist if the plaintiff has received a written opinion that there appears to be evidence of medical negligence. The opinion will have to be attached to the complaint but the identity of the expert giving the opinion need not be disclosed.

An enactment could be similar to that in the State of Connecticut in the USA which requires due certification of good faith by the complainant, based on the opinion of a medical expert as prerequisite to the court taking cognizance of the case.

In the State of Connecticut, under Connecticut General Statutes Section 52-190a, specific legal requirements apply to negligence actions against health care providers. Here are the key points:

• Reasonable Inquiry and Certificate of Good Faith:
  • No civil action or apportionment complaint can be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, if it alleges negligence by a health care provider.
  • Before filing such an action, the attorney or party must make a reasonable inquiry to determine grounds for a good faith belief that there has been negligence in the care or treatment of the claimant.
  • The complaint or initial pleading must contain a certificate stating that such reasonable inquiry led to a good faith belief in the grounds for the action.
     
• Written Opinion Requirement:
  • To demonstrate good faith, the claimant (or their attorney) must obtain a written and signed opinion from a similar health care provider (as defined in section 52-184c).
  • This opinion should indicate evidence of medical negligence and provide a detailed basis for forming that opinion.
  • The written opinion is not subject to discovery except for questioning the validity of the certificate.
     
• Ninety-Day Extension of Statute of Limitations:
  • The statute of limitations is extended by 90 days for negligence actions against health care providers.

Similar legal provisions may exist in other states and countries, but the specifics can vary.

In spite of the two landmark judgments by our Supreme Court and the State of Connecticut Law, the filing of frivolous cases continues in India. The Consumer Protection Act (CPA) has enabled easy, no-cost access to consumer courts that has led to the filing of frivolous medical negligence cases for lucrative compensation. The practitioners of modern medicine appear to be soft targets.

Tort Reform is needed to prevent misuse of provisions of CPA Act for medical negligence.

In light of directions of the Supreme Court the Legislature must act.

Written By: Dr.Shri Gopal Kabra, MBBS, LLB, MSc, MS(Anatomy), MS(Surgery).
Email: [email protected] Mobile- 8003516198