MEDICAL LAW AND ETHICS - A Brief Study

MEDICAL LAW AND ETHICS

            The medical profession is governed by legislation and by a code of ethics and etiquette, which is backed up by a sanction Enforcement of the code may have varying degrees of compulsion, enforced by some. sort of codified rules or the opinion of a society or an association of the members of the profession.

Indian Medical Degrees Act, 1916

            This is the principal All India Statute to regulate the grant of titles implying qualification in Western Medical Science. The Act attempts to check the assumption and use by unqualified persons of medical titles. Certain authorities mentioned in the Act have the right to confer medical degrees, diplomas, licenses and certificates implying that the grantee or recipient there of is qualified to practice Western Medical Science. The false assumption and use of a medical title are punishable under the Act.

Indian Medical Council Act 1933

            The act was passed to safeguard the status of the degrees conferred by the Indian Universities and to provide for the maintenance of uniform minimum standards of medical education. Prior to this act, some provinces only had provincial medical councils.

The Dentists Act, 1948:

            The Act was passed to regulate the profession of dentistry in general, and to constitute Dental Council of India and for a Register called ‘Indian Dentists Register’. It also provides for the constitution and compositions of the  State Dental Council and for State Register of Dentists.

The Indian Medical Dentists Council Act, 1956

            The act of 1933 was repealed to re-enact is as the act of 1956, which extends to the whole of India. It was amended in 1964.       The Indian Medical Council, constituted under the Act, consists of following members namely: (a) one member from each State to be nominated by the Central Government in consultation with the State Government concerned. (b) One member from each University, to be elected from amongst the members of the medical faculty of the University by members of the Senate or by members of the court of the University. (c) One member from each State in which a State Medical Register is maintained, to be elected from amongst themselves by persons enrolled on such Register. (d) Seven members to be elected from amongst themselves by persons enrolled on any of the State Medical Registers. (e) Eight members to be nominated by the Central Government.

            They hold office for a term not exceeding five years. A president and vice president are elected from among these members. The council appoints a registrar who acts as secretary and may also act as treasurer, and looks after the day to day work. The  Executive Committee consists of president, and 7 to 10 other members. Other committees for general or special purposes are constituted from amongst its members. The first schedule of the act contains the recognized medical qualifications granted by universities in India. The second schedule those granted outside India, part I of the 3^rd schedule contains those granted by Medical Institutions not included in the First schedule, part II of the 3^rd schedule includes those granted outside India but not included in the Second schedule.

Indian Medical Council Functions

1. Medical Registrar:

            The council maintains a registrar of medical practitioners, known s the Indian Medical Register, which contains the names of all persons who are enrolled on any State Medical Register, and who possess any of the recognized medical qualifications. If the name of a person enrolled on a State Medical Register is removed there from the Council also removes such person’s name from the Indian Medical Register.

2. Medical Education:

            It has the authority to prescribe standards of postgraduate medical education for the guidance of the Universities and may advice the Universities in maintaining uniform standards for postgraduate medical education throughout India. A Postgraduate Medical Education Committee consisting of nine members is constituted for this purpose.

            The Council maintains the standards of undergraduate medical education. The Council may prescribe the minimum standards of medical education required for granting recognized medical qualifications by Universities or medical institutions in India. It appoints Medical Inspectors to attend at any or all examinations held by Universities or Institutions in India for the purpose of recommending to the Central Government recognition of Medical qualifications. The Inspectors have no power to interfere with the conduct of any training or examination.

            The Inspectors report to the Council on the adequacy of the standards of medical education including staff, equipment, accommodation, training and other facilities prescribed for giving medical education or on the sufficiency of every examination they attended. The committee forwards a copy of any such report to the University or medical institution concerned, and. a copy with the remarks of the University or institution there on, to the Central Government.

            It can make a representation to the tifiii1’medical qualifications of any University, if it is not satisfied with the standards.

            After considering such representation, the Central Government may send it to the concerned State Government, which forwards it along with its remarks to the University or medical institution for submitting an explanation to the State Government. On the receipt of the explanation, the State Government forwards its recommendation to the Central Government. Any University which grants a medical qualification not included in the First Schedule, may apply to the Central Government to have such qualification recognized. The Central Government, after consulting the Council, may by notification in the Official Gazette amend the First Schedule so as to include such qualification therein.

3. Recognition of Foreign Medical Qualifications

            The Council provides for the registration of any citizen of India who has obtained foreign medical qualifications which are not recognized under the existing Act. It has the power to negotiate with the authority in any state or country outside India for the reciprocal recognition of medical qualifications. The Central Government may amend the Second Schedule to include any medical qualification which the Council has decided should be recognized.

4. Appeal against Disciplinary Action

            If the name o any person is removed from the State Medical Register, on any grounds other than that he has no recognized medical qualification, he may appeal to the Central Government, after, exhausting all the remedies under the State enactment. Every such appeal should be in writing and addressed to the Central Government and should state the grounds of the appeal and accompanied by all relevant documents including •a receipt for the payment of Rs.20/- within 30 days from the’ date of the decision appealed against. The decision of the Central Government, which is given after consulting the Indian Medical Council, is binding on the State Government, and the State Medical Council.

5. Warning Notice:

            The Council may prescribe standards of professional conduct and etiquette and a Code of Ethics for, medical practitioners. It can issue warning notice comprising certain practices which are regarded as falling within the meaning of the term infamous conduct in a professional respect.

STATE MEDICAL COUNCILS:

            Each State has a Medical Council of its own. Each of these medical council consists of members elected by the registered medical practitioners and those nominated by the state government. The president and the vice president of the council are elected by the members from amongst themselves.

FUNCTIONS

1. Medical Register

            The Council appoints a Registrar, who keeps a Register of Medical Practitioners. The name, residence, qualifications and the date on which each qualification was granted of every person who is registered under this act is entered in the Register, our payment of-prescribed fees. Any person having any of the recognized medical qualifications is entitled to be registered. After passing the qualifying examination, it may be necessary to undergo a period of training, before such qualification is conferred on him. A provisional registration in a State Medical Register is granted to such person on, application to enable him to practice medicine in an approved institution for the required period: The registrar should inform the Indian Medical council without delay of all additions and other amendments in the state Medical Register made from time to time.

2. Disciplinary Control

            They have the disciplinary, cnro1 over the medical practitioner. They have the power to remove the name of medical practitioners permanently or for a specific period from their registers-when after due enquiry they are found to have been guilty of infamous conduct in any professional respect. They also authorized to direct the restoration of name so removed:

3. They can issue warning notices similar to that of the Indian Medical Council

Judicial Procedure of state Councils

            The Council does not, of itself, start proceedings. These arise in one of two ways:
(1) When a medical practitioner has been convicted by a Court of Law.(2) By a complaint being made by some person or body against the practitioner.

            The Registrar of the Disciplinary Council submits the complaint to its president. The matter is referred to the Sub-committee or to the Executive committee, which considers the complaint, causes further investigation and takes legal advice. If no primacies case is made out the complainant is formed accordingly. if an inquiry is to be made a notice is issued to the practitioner specifying the nature and particulars of the charge and directing him to answer the charge in writing and to attend before the Council on the appointed day. At the hearing, the complainant or his legal advice or the practitioner and the legal advisor of the Council must be present. Upon the conclusion of the case, vote is taken, and the judgment pronounced. If the majority vote is to the effect that the charge has been proved, the council must then vote and decide whether the name of the practitioner should be removed from the register or whether a notice of warning should be issued to him.

            Erasure of name of the practitioner from Medical Register is done: (1) After the death of the registered practitioner. (2) Entries which are made in error or as a result of fraud. (3) Penal Erasure: The main cause for erasure is infamous conduct in any professional respect, and this known as penal erasure. It is sometimes termed “the professional death sentence”. It deprives the practitioner of all the privileges of a registered practitioner.

Infamous Conduct in a Professional Respect:

            (Serious professional misconduct)) It has been defined as some thing which might reasonably be regarded as disgraceful or dishonorable by profession men good repute and competence. It involves an abuse of professional position.

WARNING NOTICE

            A Registered Medical Practitioner has got to observe certain prescribed rules of conduct laid down in a Code of Medical Ethics, published by the Medical Council of India and by several State Medical Councils. The name is liable to be removed from the Register for violation of the rules. The Council gives examples of offences which constitute infamous conduct, but it stresses the fact that it is not a complete list. The Council can also consider any form of alleged professional misconduct, which does not come within any of the categories contained in the Warning Notice.

            Any one found guilty of any of the following offences mentioned in the warning notice issued by the Medical Council or India will be liable to have his name erased from the Medical Register.

1.      (a) Adultery. (b) Improper conduct or association with a patient or member of the patients family.

2.      Conviction by a Court of Law for offences involving moral turpitude.

3.      Issuing a false, misleading or improper certificate in connection with sick benefit, insurance, passport, attendance in court, public services, etc.

4.      Withholding from health authorities information of notiliable diseases.

5.      Performing or enabling an unqualified person to perform an abortion or any illegal operation for which there is no indication.

6.      Contravening the provisions of the Drugs Act.

7.      Selling scheduled poisons to the public under cover of his qualifications, except to his patients.

8.      Dichotomy or fee splitting, i.e. receiving or giving commission or other benefits to a professional colleague or manufacturer or trader in drugs or appliances or a chemist, dentist etc.

9.      Using of touts or agents for procuring patients.

10.  Disclosing the secrets of a patient that have been learnt in the exercise of his profession, except in a court of law.

11.  Covering, i.e. assisting some one who has no medical qualification to attend, treat, or perform an operation on me person in respect of matters requiring professional discretion or skill.

12.  Association with manufacturing firms: (a) A physician should hot hold any personal ownership in patients for any drug, apparatus, instrument or appliance used in medicine or surgery. He should not solicit or receive rebates or commission from prescribing of any agent used therapeutically (b) A physician must not Write prescriptions in private formulae or which only he or particular pharmacy has the key. He can keep certain lotions or mixtures as long as formulae of the same are available.

13.  Advertising: (a) Publishing on his own in the lay press reports of cases treated or operated on by him or sanctioning the publication of any certificates for drugs, foods, or appliances by him. (b) No physician must exhibit publicly the scale of fees except in his consulting or waiting room. (c) A physician can announce in press, lay or professional, his commencement of practice, interruption or resumption of it after a long interval, or a change of his address, but such an announcement shall not appear more than twice. (d) It shall be open for a physician to Write to the lay press under his own name on matters of public health, hygienic living or to deliver public lectures, give talks on the radio for the same purpose. (e) An institution such as a maternity home, a sanatorium, a house for the crippled or blind, etc., may be advertised in the lay press but the name of the doctor should not appear. (f) It is improper for a physician to use an unusually large signboard and to write on it anything other than his name, qualification and name of his specialty. The same should be the contents of his prescription paper, which may ,in addition contain address and telephone number. -It is improper to affix a sign board on a chemist’s shop or in places where he does not reside or work. (g) He should not advertise himself through manufacturing firms directly or indirectly.

14.  Professional association with bodies of societies of unqualified persons formed for the purpose of turning unqualified practitioners.

15.  Running an open shop for sale of medicines, for dispensing prescriptions of other doctors or for sale of medical or surgical appliances.

16.  Refusal to give professional service on religious grounds.

17.  Drunk and disorderly so as to interfere with proper skilled practice of medicine.

The outstanding offences may be described as ‘the 6A’

1.      Association with unqualified persons

2.      Advertising

3.      Adultery arising out of professional relationships

4.      Abortion – unlawful

5.      Addiction

6.      Alcohol

Medical Practitioners

1.      Right to choose a patient.

2.      Right to add title, description. etc., to the name.

3.      Right to practice medicine,

4.      Right to dispense medicine.

5.      Right to possess and supply dangerous drugs to his patients.

6.      Right to recovery of fees.

7.      Right for appointment to public and local hospitals.

8.      Right to issue medical certificates.

9.      Right to give evidence as an expert.

10.  Exemption, from serving as -a juror at an inquest.

11.  Right to remove eyes of deceased person.

DUTIES OF MEDICAL PRACTITIONER

            The following are the various types of duties.

(1) Duty to exercise a reasonable degree of skill and knowledge.

            This duty arises the moment the physician patient relationship is established. The physician-patient relationship begins when the physician in response to an express or implied request that he treat the patient, undertakes to render service. He owes this duty to the child even when engaged by his father. He owes this duty even when a patient is treated free of charge. It neither guarantees cure nor an assured improvement. A practitioner is not liable because some one else of greater skill and knowledge would have prescribed a better treatment or operated better in the same circumstances.

De Freville V. Dill:

            The plaintiff, Mrs. De Freville, was observed by a doctor for some hours and certified that she was of unsound mind. He told the Relieving Officer has a second medical opinion been not necessary. The plaintiff was taken before a judge who passed a reception order. She was admitted into a mental hospital, and was discharged the next morning as cured. She brought a suit against the doctor for negligent’ certification. The court held that the doctor was negligent, as he did not exercise reasonable care.

Wiciteford V. Hunter and Gleed (1950):

            A consulting engineer of London was examined by a consulting surgeon who diagnosed enlarged prostate by doing rectal examination and advised operation. The surgeon did not use a cystoscope or make a biopsy. On opening the bladder he found an indurated mass near the base and erro.n.eously diagnosed an inoperable carcinoma and opined the expectancy of life to be only few months. The patient gave up his business and went to the U.S.A., where a cystoscopic examination showed a prostate with a median bar, and the pathological examination revealed chronic cystitis. An operation was performed and the calcareous material was removed from the diverticulum. There was no evidence of cancer. The patient sued the doctor for negligence and was awarded damages. The surgeon appealed and the Court of Appeal held that a mistake in diagnosis was not enough to justify negligence.

            In wood V. Charing Cross Hospital, a drunken person was hit by a lorry. The doctor who examined him found no clinical evidence of bone injury or any abnormality, but the stethoscope was not used. The patient was sent home after being treated for nose bleeding. The patient died 2 days later, and autopsy showed fracture of one clavicle and 9 ribs on each side and congestion of lungs. The court found the doctor negligent in not exercising reasonable care in his examination.

            In Paynee V. Helier, the patient was kicked in the abdomen by a horse. He went to the hospital 9 hours after the injury, where he was examined by the Casualty Officer, who was qualified 2 years back. He found a bruise in the right iliac fossa, but did not find any body or visceral injury. The patient was sent home, who became very ill after some days and was readmitted in the hospital. The patient was operated but died later. The court held the Casualty Officer negligent as he made a wrong diagnosis due to his failure to exercise the reasonable skill and care

            A doctor, while he was drunk, operated upon a woman for eclampsia. Two days later the woman died due to the injuries produced during operation. The doctor was sentenced to one year imprisonment for want of reasonable care and skill due to intoxication.

(II) Duties with regard to attendance and Examination

            When a practitioner agrees to attend a patient he is under an obligation, to attend to the case as long as it requires attention. He can withdraw only after giving reasonable notice or when he is requested by the patient to withdraw. He cannot give up the patient without his consent except for valid reasons, such as (1) That remedies, other than those prescribed by him, are being used. (2) That his instructions are being ignored. (3) That he is convinced that the complaint of the patient is a mere pretence. (4) That the practitioner himself becomes sick. (5) That previous financial obligations are not being fulfilled by the patient. (6) That another practitioner is also attending the patient. (7) That the patient persists in the use of intoxicants or poisons.

            If a physician is unable to treat the patient when his services are needed, he may provide a qualified and competent substitute to render the services. If the practitioner cannot cure a patient, he need not withdraw, if the patient desires his services. He should not get his patient examined or operated upon by another doctor without his permission. If the doctor is called by the police to attend a case of accident, he may render first aid and advice but here no doctor patient relationship is established. There is no law to compel a doctor to attend a patient except during military necessity.

            In Newton V. Central Middlessex G.H.M.S. one Newton was taken to the hospital after an accident. A doctor examined him but failed to diagnose the fractured patella and wrote, ‘No clinical fracture’ on the hospital card. Later the patient saw two other doctors at the hospital, who relying on the hospital card, did not examine the knee, though the patient had complained of pain in the knee. The patient sued both the doctors for negligence. The court held that the first doctor was not guilty because the patient went to him only for a dressing. The second doctor was held negligent as he failed to examine the knee himself.

(III) Duty to Furnish Proper and Suitable Medicines:

            If the doctor has his own dispensary, he should furnish the patient with suitable medicines. Otherwise he should give a legible prescription, mentioning full and detailed instructions. The doctor is held responsible for any temporary or permanent damage in health, caused to the patient due to wrong prescription.

(IV) Duty to give Instructions:

            The doctor should give full directions to his patients or their attendants regarding the use of medicines and diet. He should mention the exact quantities and precise timing for taking medicines.

            In Ball V. Howard, the plaintiff was operated for appendicitis. The surgeon did not call another surgeon for consultation, though the patient requested for the same as he developed some complications, and went away without leaving proper instructions as to what was to be done. The patient called another surgeon, who performed a second operation after which the patient made a good recovery. The court held that the first surgeon was negligent in not attending to the patient with reasonable promptness and in going away without giving proper instructions.

(V) Duty towards Children and Adults

            Incapable of taking care of them: When applying hot water bottles and similar articles to children, special care should be taken, for the child may be injured. Special precautions should be taken in case of adults who are incapable of taking care of themselves due to insanity or some physical disability.

            A woman was placed in a bed after an operation in which a hot water bottle was negligently left, due to which she was severely burnt between her shoulders. The surgeon came to see her while she was recovering from the anesthetic. She complained to the surgeon about the pain between her shoulders, but he paid no attention to her. The court held the doctor negligent and awarded damages.

(VI) Duty to inform Patient of Risks

            A mentally sound adult patient must be told of all the relevant facts. But under certain conditions arising out of psychological factors, some facts have to be withheld.

            In Kankan V. Beharelal, a prescription was given to Kankan for ear trouble, which was used as directed by the doctor. The patient developed pun and 4cute sensation in the ear after a year and on examination, the drum of his right ear was found destroyed. The evidence showed that the doctor has prescribed a novel and dangerous mixture for a petty complaint and if the mixture had been used after thorough shaking no harm would have resulted. The High Court held the doctor negligent, as he failed to warn the patient of the risk involved.

 
(VII) Duty with Regard to Poisons

            Poisons should be handled carefully. Each poison should be kept in a separate battle, properly labeled and kept in a separate cupboard or upon a separate shelf. When a doctor is called upon to re a case of poisoning: (I) he should give immediate treatment, and (2) he should assist the state in determining whether the poisoning is accidental, suicidal or homicidal.

(VIII) Duty to Notify Certain Diseases:

            A doctor is bound to give information of communicable diseases, births deaths, etc. to the Public Health authorities.

(IX) Duties with regard to operations

            (1) He should explain the nature and extent of operation and take consent of the patient. (2) He should take proper care to avoid mistakes, such as, performance of operations on the wrong patient or on the wrong limb. (3) When a surgeon undertakes to operate he must not delegate that duty to another. (4) He must not experiment. (5) He must keep 4breast of current standard practice and must follow it. (6)He must operate with proper and sterilized instruments. (7) He shoul4 make sure that all the swabs, instruments, ‘etc., put in are removed. (8) He should take proper postoperative care and should give proper directions to his patient when discharging him.

(X) Duties under Geneva conventions:

            In Geneva, in 1919, four conventions were agreed upon by several countries including India. Each convention lays down that the persons it protects, whether the wounded or sick of the armed forces (first convention), ship-wrecked persons (second prisoners of war (third) or civilians of enemy nationality (fourth) are to be treated without any adverse distinction founded on sex, race, nationality, political opinions or any other similar criteria. Priority is authorized only for urgent medical reasons.

(XI) Duties with regard to consultation

            Consultation should be advised preferably with a specialist in the following conditions. (1) When the case is obscure or has taken a serious turn. (2) When an operation or a special treatment involving danger to life is to be undertaken. (3) When an operation affecting vitality of intellectual or generative functions is to be performed. (4) When an operation is to be performed on a patient who has received serious injuries in a criminal assault. (5) When a- operation of a mutilating or destructive nature is to be performed on an unborn child (6) When a therapeutic abortion is to be occurred. (7) When a woman n whom criminal abortion has already been performed has sought advice far treatment. (8) When the patient is suffering from symptoms of poisoning, especially criminal.

           

            In Molseworth’s case, the patient engaged a senior surgeon for hernia operation, but he was operated upon by a House- Surgeon. The Court held that the House Surgeon had operated without the plaintiff’s consent, and that for an unauthorized person to do, in competent manner, an act Which another was authorized to do, was a technical form of trespass and the patient was awarded nominal damages.

(XII) Duty in connection with X-ray Examination

            As far as possible all cases of accident, unless they are trivial should be X—rayed. In Fraser V. Vancouver General Hospital, a patient was X—rayed after a motor accident. The casualty officer, who was not competent, gave opinion that the neck was not broken. The court held him negligent in not diagnosing a broken neck.

(XIII) Professional Secrecy

            It is an implied term of contract between the doctor and his patient. The doctor is obliged to keep secret all that he comes to know concerning the patient in the course of. his professional work. Its disclosure would be a breach of trust and confidence. The patient can sue the doctor for damages if the disclosure was voluntary, resulted in harm to the patient and was not in the interest of the patient or the public.

The following points may be noted:

1.      A doctor should not discuss the illness of his patient with others without the consent of the patient.

2.      A practitioner should not answer any enquiry by third parties even when enquired by near relatives of the patient, either with regard to the nature of the illness or with regard to any subsequent effect of such illness on the patient without the consent of the patient.

3.      A practitioner should not disclose any information about the illness of his patient without the consent of the patient, even when requested by a public or statutory body,

4.      If the patient is a major, the doctor should not disclose any facts about the illness without his consent to parents or relatives, even though they may be paying the doctor’s fees. In the case of minor or an insane, guardians or parents should be informed of the nature of the illness.

5.      Even in the case of husband and wife, the facts relating to the nature of illness of the one must not be disclosed to the other without the consent of the concerned person.

6.      When a domestic servant is examined at the request1of the master, the doctor should not disclose any facts about the illness to- the master without the consent of the servant, even though the master is paying the fees.

7.      When a doctor examines a Government Servant, on behalf of the Government, he cannot disclose the nature of the illness to the Government without the patient’s
consent.

8.      A person in police custody as an undertrial prisoner has the right not to permit the doctor who has examined him, to disclose the nature of his illness to any person. If a person is convicted- he has no such right and the doctor can disclose the result to the authorities.

9.      The medical officer of a firm or factory should not disclose the result of his examination of an employee to the employers without the consent of the employee.

10.  The medical examination for taking out a life insurance policy is voluntary act by the examinee and, therefore, consent to the disclosure of the finding may be taken as implied. A doctor should not give any information to an-insurance Company about a person- who has consulted him before, without the patient’s. Consent. Any information regarding -a deceased person may he given only after obtaining the consent from the - nearest relative.

11.  In diverse and nullity cases no information should be given without getting the consent of the person concerned

12.  Medical Officers in Government service are also bound by the code of professional secrecy, even when the patient is treated free.

13.  In reporting a case in any medical journal care should be taken that the patient’s identity is not revealed from the case notes or photographs.

14.  In the examination of a dead body certain facts may be found, the disclosure of which may affect the reputation of the deceased or cause distress to his relatives, and as such the doctor should maintain secrecy.

Privileged Communication:

            This is intimately associated with that of professional secrecy. It is a statement made bonafide upon any subject matter by a doctor to the concerned authority, by virtue of his duty to protect the interests of the community in general or of the State. To be privileged the communication must be made to a person having interest in it or in reference of which he has a duty. If made to more than one person, or to a person who has not a direct interest in it, the plea of privilege fails. The doctor should first employ all his persuasion to practitioner to obtain the patients consent before notifying the proper authority. If the practitioner discloses professional secrets for the purpose of protecting the interest of the community he will not be liable to damages.

            The following are the examples of privileged communication, or in other words, exceptions to the general rule of professional secrecy.

            + + A. V. D. specialist saw a young man suffering from syphilis, about to enter a public bath. The specialist tried to dissuade the person from entering the bath, but he refused. The physician reported the matter to the attendant who did not allow the young man to bathe. The patient brought a suit against the doctor for breach of professional confidence, but the court dismissed the case on the ground that doctor had acted in the interest of the community.

(1) Infectious Disease:

            If it is found that a patient suffering from an infectious disease is employed as cook or waiter in a hotel, as children’s nurse, etc., he should be persuaded to leave the job until he becomes non-infectious. If the patient refuses to accept this advice the doctor can disclose it to the employer of his patient.

(2) Servant and employees:

            An engine driver or a bus driver or a ship’s officer may be suffering from epilepsy, high blood pressure, alcoholism, drug addiction, or colour blindness. The doctor’s first duty in such a case is to try to get the patient to change his employment, pointing out to him the dangers of his present occupation, both to himself and to the public If this fails, the doctor should inform the employer, that the patient is unfit for that kind of employment.

(3) Venereal Diseases:

            If a person is suffering from syphilis and is about to marry, it is the duty of the doctor to advise the patient from contracting marriage till he is cured; if the person refuses he can disclose the syphilitic condition of the patient to the woman concerned or to her parents. Swimming pools should be prohibited to those having syphilis or gonorrhoea, but it the person refuses the authorities can be informed. The doctor can inform the Warden of a hostel, if any bDarder is suffering from venereal disease.

(4) Notification of infectious diseases:

            A medical practitioner has a statutory duty to notify births, deaths, infectious diseases, etc., to the public health authorities.

(5) Laying information of a suspected crime:

            In the case of serious crime, such as murder, the doctor is bound to give information to the police. Thus, if a doctor is called upon to attend a person suffering from gunshot or stab wounds due to criminal assault, he must inform the police.

(6) Disclosure in self interest:

            Both in civil and criminal actions by the patient against the doctor, evidence about the patient’s condition may be given without any hesitation.

(7) Disclosure in the patient’s own interest:

            It may become necessary for doctor to disclose the patient’s condition to some other person, so that he may be properly treated, e. g., to warn the parents or guardians of signs in the patient of melancholia, suicidal tendencies, etc.

(8) Negligence suits:

            ‘When a physician is employed by opposite party to examine a patient who has filed a suit for negligence, the information thus acquired is not privileged (no physician patient relationship), and the doctor may testify to such information.

(9) Courts of-Law:

            In a Court of Law a doctor cannot claim privilege concerning communications between himself and his patient, if it is relevant to the inquiry before the court. In all cases, the Judge should be appealed to before revealing a professional secret. The doctor may request the judge that he will give the information in writing so that it is not made public. The witness should not voluntarily disclose information either in court or out of it, but for actual evidence demanded by the court, he is protected from civil proceedings for broach of confidence.

Physician’s Responsibility in Criminal Matters:

            A practitioner is liable to be punished if, being bound by law to give information regarding certain crimes committed by his patient, he fails to give that information to the police. In such matters he cannot claim professional secrecy. The practitioner should hand over to the police a man, whom, from the nature of injury, he may suspect to be an assailant in a murder case. But, if he treats a person who has attempted to con4mit suicide, he is not legally bound tâ report, but if the person 4ies he has to inform the police: The practitioner’& responsibility in case of criminal ‘abortion and poisoning have been discussed elsewhere.

Duties of a Patient:

(1) He should furnish. the lotth’w4th complete information about the facts and circumstances of bisilhress: (2 He should strictly follow the instructions and directions of the doctor as regards diet, medicine, mode of life, etc. (3) He should paya reasonable fee to the

PROFESSIOINAL NEGLIGENCE (MALPRAXIS)

            Malpraxis is defined as absence of reasonable care and skill, or wilful negligence of a medical practitioner, in. the treatment of a patient so as to lead to his bodily injury or death. Negligence is defined as doing is supposed do.

            Due Care means such reasonable care and attention for the safety of patients as their mental and physical condition may require should be commensurate with the known inability of the patient to take care of him.

Civil Negligence:

            The question of civil negligence arises: (1) When a patient, or in case f death, any relative brings suit in a civil court for realization of compensation from his doctor, if he has suffered injury due to negligence. (2) When a doctor, brings .a civil suit for the realization of his fees from the patient or his relatives who refuse to pay the same on the ground of professional negligence.

            Liability for negligence arises if the following conditions are satisfied; (1) Duty: Existence of a duty of care by the doctor. (2) Dereliction: The failure on the part of the doctor to maintain care and skill. (3) Direct causation: The failure to exercise a duty of care must lead to damage (proximate cause). (4) Damage The damage which results must be reasonably foreseeable.

            Any want of proper skill or care that causes the patient’s death, diminishes his: chances of recovery, prolongs his illness, ‘increases his suffering, constitutes injury -in a legal sense. However negligent the doctor might be patient cannot sue him - for negligence if no damage has occurred. The patient must suffer some loss which can be measured and compensated in terms of money. The amount of damage done is a measure of the extent of the liability. Some examples are (1) Loss of earning, either due to enforced absence from work or prevention or impairment of his ability to pursue his occupation. (2) Expenses incurred, e.g. hospital expenses, special diet, etc. (3) Reduction in expectation of life, (4) Reduced enjoyment of life, such as loss of faculty of limb or sense. (5) Pain and suffering, either physical or mental. (6) Loss of potency. (7) Death.

            If there is no informed consent, the doctors is guilty of negligence even though he exercised reasonable care and skill. A physician may be liable if his negligence other to catch a disease from his patient. A doctor will be liable for action if he does not attend the patient in time or to attend to the patient altogether, in obstetric cases where the physician is not available at the time of the patient’s delivery or has not provided for a substitute physician. A doctor can also be held responsible where he fails to se the patient as frequently as required and where damages result from his absence. Premature discharge of the patient may result in a charge of abandonment. A doctor will be liable if he fails to give proper instructions. A doctor is held negligent if he fails to examine the patient himself to find out the true facts, but relies on the diagnosis of another doctor and treats the patient. A practitioner is liable even if he treats the patient free of charge. A physician may be liable for a wrong diagnosis if it results due to absence of skill or care on his part and if it is followed by improper treatment, which proximately causes injury to the patient. A doctor is not liable for an error of judgment or of diagnosis, if he has secured necessary data on which to base a sound judgment. For the treatment of a disease. or injury the doctor may adopt the one which, in his judgment, will be more efficacious and appropriate. In such case he doctor is not liable for an injury resulting from an error in his judgment. A doctor is not liable simply because of failure to cure or for bad result that my follow, if he has exercised reasonable care and skill, A doctor is not held guilty of negligence if he exercises reasonable care and skills provided hat his judgment confirms to the accepted medical practice, and does not result in the failure to do something or doing something contrary to accepted medical practice Some risks are inherent in any form of treatment and the doctor will not be negligent if they cause damage provided that he has taken, e.g. broken needle during injection. If the needle breaks, the patient should be informed and arrangements made to remove the broken piece. The doctor becomes negligent if he fails to observe that the needle has broken, or having noted this, does not inform the patient or make arrangements to prevent further damage.

Medical Maloccurrence

            Medicine deals with human beings, and there are many biological variations which cannot always be explained, expected or prepared for. In some cases, inspite of good medical attention and care, an individual fails to respond property. This is called medical ia1occurrence. Every mishap or accident which results in injury does not entitle the injured person to monetary compensation. The mishap may be due to an act of God or to inevitable accident, e.g. lightning or traffic accident due to sudden death of a driver from heart failure.

            The doctors are expected to keep east of general principles and to follow general lines of treatment, though they are not expected to be aware of every development in medical science. The degree of competence is not a fixed quality, but varies according to the status of the doctor. A house-surgeon is not expected to possess the same skills as a consultant surgeon, but he is expected to confine his activities to a level of medical care which is within his competence A general medical practitioner is expected to use only the average degree of skill and knowledge possessed by doctors of similar status practicing in the locality. A specialist must maintain standards of skill 1ndiagnosisand treatment above those of the ordinary general practitioner. If a doctor holds himself out as possessing superior skill, knowledge, ‘experience or training, he will be judged according to those standards, even in its absence. If a general practitioner undertakes to act as a specialist in a case that clearly lies within a specialized medical field, he will be held liable for failure to use skill equal to that of a specialist.

            In a personal injury case, the fact that the patient’s injuries are aggravated by hi S own predisposition or weakness does not diminish the extent of damages.

             Duty of care does not arise in conducting medico-legal examination for any purpose, e.g., evaluation of disability, insurance, drunkenness, etc., for the doctor is not there in his capacity as a healer.

            The burden of proving negligence lies on the plaintiff (patient). In order to establish negligence it is not necessary to prove that the negligent party had bad motive or intention.

            In Whitamore V. Rao, a suit was filed against the doctor for negligent treatment. The charge was that the doctor injected suiphostab or sulfarsenol, though the patient was not syphilitic. Evidence was given by the defendant doctor and other doctors that the patient’s blood contained parasite s of malignant malaria and he had sores o a his face. The court held that the doctor was not negligent.

            In Crivon V. Barret Group Hospital Commitee, the plaintiff was operated for the removal of a small breast tumour, and pathologist reported that it looked like cancer. Intensive X-ray therapy was given to the patient, due to which the skin surface was destroyed and there was the possibitity of potential hazards. The patient on knowing the diagnosis suffered great pain and worry. Later if was found that the diagnosis was not correct. An expert pathologist gave evidence that he might have also given the same diagnosis. The court held that the pathologist was not negligent as the interpretation of the slide was difficult and debatable. It also held that the surgeon was not negligent in not taking a second opinion, as the speed of treatment was essential in the case.

            In Roe V. Ministry of Health, two persons were operated upon under Nupercain spinal anaesthetic that developed permanent spastic paraplegia. The Nupercain was contained in glass ampoules which were kept in a phenol solution. It was found that phenol had percolated into the Nupercain through molecular flaws or cracks in the ampoules, which was responsible for the paraplegia. At that time this risk of percolation was not known to anaesthetists in general and the court held that it was only a misadventure and not negligence.

The Doctorine of Res Ipsa Loquitor:

            Ordinarily, the professional negligence of a physician must be established in court by the expert testimony of another physician. The plaintiff need not prove negligence in a case where the rule of res ipsa loquitur applies, which means “the thing speaks for itself”. This rule is applied when the following conditions are satisfied: (1) that in the absence of negligence the injury would not have occurred ordinarily; (2) that the defendant had exclusive control over the injury producing instrument or treatment; (3) that the plaintiff was not guilty of contributory negligence.

            This enables plaintiff’s lawyer to prove his case without medical evidence. Some of the examples are: prescribing an overdose of a medicine producing ill-effect; giving poisonous medicine carelessly; failure to remove the swabs during operation which may lead to complications or cause death; failure to give anti-tetanic serum in cases of injury causing tetanus; loss of use of a hand due to prolonged splinting; burns from application of hot water bottles or from X—ray therapy: breaking of needles; blood transfusion misadventure, etc.

            In Mohn V. Osborne, an abdominal operation was performed by a resident surgeon and at its conclusion; the surgeon was informed that the swab count was correct. Two months later, a further operation was done and swab was found under the liver. The patient died later. The mother of the deceased sued the surgeon for damages. The court held the doctor negligent on the ground that the doctrine of res ipsa loquitur applied to the case.

Doctrine of Common Knowledge:

            This doctrine is based on the assumption that the issue of negligence in the particular case is not related to technical matters which are within the knowledge of the medical profession. It is a variant of Res ipsa loquitur. In Res ipsa loquitur, the patient need not produce evidence as to both the standard of care and the specific act or omission. In doctrine of common knowledge, the patient must prove the causative act or omission, but he need not produce evidence to establish the standard of care.

Criminal negligence:

            Criminal negligence occurs when the physician exhibits gross lack of competency, gross inattention, criminal indifference to the patient’s safety, or gross negligence in the selection and application of remedies. To be criminal, the negligence must be wilfur wanton, or causable. It occ1The negligence is so gross that compensation is inadequate redress. It results in a prosecution by the State in order tO protect the community and punish the wrong doer. Sec. 304-A, LP,C. deals with criminal negligence. “Whoever causes the death f any person doing any rash negligent act not amounting to culpable homicide shall be punished with imprisonment upto 2 years,’ of with fine or, with both’. The following re some of the examples: (1) Gross mismanagement of the delivery of a woman, especially by a doctor under the influence of drink or drugs. (2) Grossly incompetent administration of a general anaesthetic by a doctor addicted to the inhalation of anaesthetic. (3) Administration of a wrong substance into the eye causing loss of visions (4) Amputation of wrong finger or operation on wrong limb or wrong patient. (5) Leaving instruments, tubes, sponges or swabs in the abdomen. (6) Performing criminal abortion.

            The question of criminal negligence may arise: (1) When a doctor shows gross absence of skill or care in the course of treatment resulting in serious injury to or death of the patient by acts of omission or commission. (2) When a doctor performs an illegal act, so as to abuse his rights and duties. (3) When an assaulted person dies, the defence may attribute the death to the negligence or undue interference in the treatment of the deceased by the doctor.

            Criminal negligence is more serious than the civil. For criminal malpraxis the doctor may be prosecuted by the police and charged in a criminal court with having caused the death of his patient by a rash or negligent act not amounting to culpable homicide. The prosecution must prove all the facts to establish civil negligence (except monetary loss) and grave negligence and disregard for the life and safety of the patient. Contributory negligence is not a defence in criminal negligence.

            A single professional act by a physician may subject him to both civil and criminal liability. For example, if a physician performs an unauthorized operation on a patient he may be sued civilly for damages and prosecuted criminally for assault.

            A hakim gave a penicillin injection to a person, who died due to it. The ceurt held that the ignorance of hakim alone about penicillin injections, would’ make his apt of giving treatment rash and negligent.

            In Kobiraj V. Empress, a. quk cut te internal piles of a patient with an ‘ordinary knife, who died of haemorrhage. He was charged under section” 304-A, I.P.C.

            The quack contended that he had performed similar operations before, and that he was entitled to the benefit of section 88 I.P.C. as he operated in good faith and the patient had accepted the risk. The court held the accused criminally negligent as he was not educated in surgery.

            In Desouza V. Emperor, the accused was incharge of a dispensary which was badly managed with maxing up of poisonous and non poisonous medicines. To prepare a mixture of quinine hydrochloride, the accused removed a bottle from the nonpoisonous medicines cupboard, and tore open the wrapper without looking at it, on which the word ‘poison’ was printed. Then without reading the label on bottle, on which was printed ‘Strychnine Hydrochloride,’ prepared a mixture and gave it to several persons, all of whom except one, died within a short time. He was convicted for criminal negligence under Sec. 304 A, I.P.C.

            In 1958, a German doctor went on a trip to India, without getting himself vaccinated against small-pox. On return to Germany, he resumed his practice, although he showed symptoms of small-pox and did not take any precautionary measures to see that he did: not infect others. 18 of the patients caught the disease, two of whom died. The doctor was charged with criminal negligence and was punished with 4 months imprisonment and fine.

Ethical Malpraxis:

            Ethical malpraxis is the violation of the provisions of the Code of Medical Ethics. It evokes the condemnation of the doctor’s professional brethern. In this no financial compensation is payable unless there is also civil malpraxis. if a complaint is made and the facts proved, the name of the doctor may be erased from the medical register. This term should be better avoided.

Precautions against negligence:

            To prove that reasonable care and skill has been exercised, the following precautions should be taken. (1) Never guarantee a cure. (2) Keep full and accurate medical records. (3) Employ ordinary skill and care at all times. (4) Do not fail to get written informed consent. (5) The diagnosis should be confirmed by laboratory tests. (6) Skiagrams should be taken in bone or joint injuries or when diagnosis is doubtful. (7) Immunization should be done whenever necessary, particularly for tetanus. (8) Sensitivity tests should be done before injecting preparations which are likely to produce anaphylactic shock. (9) When diagnosis is obscure consult a specialist. (10) 1nsuspected cases of cancer all laboratory investigations should be done without delay to establish early diagnosis. (11) Do not criticize another practitioner. (12) The physician should not make a statement constituting or admitting fault on his part. (13) The doctor should refrain from overoptimistic prognoses and should avoid, promising ‘too much to the patient. (14) The physician should advice his patient of any intended absence from practice and should recommend, or make available, a qualified substitute. (15) The doctor should frequently check the condition of his equipment and make use of available safety installations. .(16) The drug should be identified before being injected or use otherwise. (17) The consent of the patient should be obtained before doing an operation or giving anaesthesia. (18) The surgeon should obtain a written consent to USC his discretion in obscure cases. (19) In a criminal wouading, operation should not be performed unless it is absolutely necessary. (20) No experimental methods should be adopted without consent. (21) No procedure should be undertaken beyond one’s skill (22) The doctor should keep informed of technical advances and use standard procedure of treatment. (23) Proper instructions should be given to the patient and proper pos-operative care should be taken. (24) The patient must not  abandoned. (25) No female patient should be exam1ned unless a third person is present. (26). It is dangerous to telephone a prescription, because of the possibility of error n trassion, (27)  Anaesthesia should be given by a qualified persons. Only generally accepted anaesthetic should be given after clinical and laboratory examination of the patient. The patient should be watched until he fully recovers from its effects. (28) In the case of death from an anaesthesia or during operation the matter should be reported to the police for holding a public inquiry. (29) The anaesthetist should check the drugs to be given, bottles and cylinders, the apparatus to be used and take precautions to prevent static electric explosion and fire. (30) Do not fail to exercise care in the selection of assistants and in the delegation of duties to them. (31) Do not leave a patient unattended during labour. (32) Do not fail to secure the consent of both husband and wife if an operation on either is likely to result in sterility.

Contributory Negligence:

            Contributory negligence is any unreasonable conduct or negligence on the part’ of the patient which is the cause of the harm complained of, although the doctor was also negligent, e.g. if the patient fails to co-op a- rate with his doctor in carrying out all reasonable and proper instructions, or refuses to take the suggested treatment, or fails to attend as requested for treatment. Consequently, the doctor’s negligence is not the direct, proximate cause of the injury suffered by the patient. Proximate cause means that which, in natural and continuities sequence unbroken by any efficient intervening cause produces the injury and without which the result would not have occurred. To afford a good defence the negligence of the patient must be concurrent with that of the physician’. It must not occur either before or after the physician’s negligence. The doctor cannot plead contributory negligence if he fails to give proper instructions. The extent of contributory negligence may vary and with it will vary the doctor’s liability, from complete exoneration to a substation liability for damages. Normally, contributory negligence is only a partial defence, arid the court has right  to fix liability between the parties, and the may be reduced accordin1y. The burden of proof lies entirely on tie doctor If a patient willingly assumes the risk of the event actually taking place, he forfeits any claim to damages It a doctor is not negligent, but if a patient is negligent which results in Injury, it is called negligence of’ the patient.

            A surgeon was sued for not, removing a swab from the vagina of a patient. The patient complained bout pain, in the vagina to a nurse sometime after the operation. The nurse examined the vagia and removed the swab. The patient did not inform the surgeon about the swab in the vagina. The court held that the plaintiff was guilty of contributory negligence.

Therapeutic Misadventure:

            Therapeutic misadventure is a case in which an individual has been injured or has died due to some inadvertent, unintentional act by a doctor or agent of the doctor or hospital.

            The physician should know the properties of the drugs which he prescribes and their side effects or after-effects. Almost every therapeutic drug can cause death and every therapeutic procedure can prove fatal. Ignorance of the possibility of a reaction or continuation in the prescribing of a drug with adverse reaction amounts to negligence. While prescribing a drug that has adverse side-effects, the doctor must be certain that, the prescribed drug was the proper one for that disease. If there is any other drug which would alleviate the disease and is less likely to cause an allergic reaction, it should be prescribed. The doctor should particularly, tell a patient of possible drowsiness or similar accident producing reactions caused by many drugs.

Some examples are:

(1) Hypersensitivity reactions, some, times serious or fatal, may be caused by penicillin, aspirin, tetracycline etc. (2) Radiological procedures used for diagnostic’ purposes may prove fatal, e g poisoning by barium enema, traumatic rupture of the rectum and chemical peritonitis during barium enema. (3) Prolonged use of stilboesterol may cause  breast cancer. (4) I therapy may be a factor in the caution of thyroid cancer. (5) Electric equipment, hot water pad and heating pads May produceburns.

            To avoid a therapeutic misadventure in prescribing drugs the following points should be noted. (I) Before prescribing any drug known to cause any adverse reaction, the doctor should make a reasonable effort to determine if any adverse reaction is likely to occur. (2) Sensitivity tests should be done before injecting preparations which are likely to produce anaphylactic shock. (3) The doctor should warn the patient of side effects which may occur while he is taking the drug. (4) The doctor should inform the patient about the possibilities of permanent side effects.

VICARIOUS LIABILITY

(Liability for act of another)

            The law holds that an employer is responsible not only for his own omissions and commissions, but also for the negligence of his employees in so far as such acts occur in the course of the employment and within its scope, by the principle of respondent superior (let the master answer).

            When two doctors practice as partners, each is liable for the negligence of the other, even though he may have no part— in the negligent act. When two or more in dependent doctors are attending on a patient each may be held liable for the negligence of others that lie observes; in the ordinary course should have observed, and allows it. to continue without objection. .

            A physician may be associated temporarily with another doctor with . the establishment of an employee-employer relationship between them. Thus, if one doctor assists another in the operating room for a fee, the assistant is considered an employee of the principal surgeon. As such, the negligent act of the assistant become the responsibility of the principal surgeon. In. general practice, the principal doctor becomes responsible for any negligence of his assistant. Both may be sued the patient, even though the principal as not been professionally concerned. The same applies where the principal employs non-medical servants.

Borrowed Servant doctrine:

            An employee may serve more than one employer, e;g. the nurse employed by a hospital to assist in operations may be the “borrowed servant” of the operating surgeon
• during the operation and the servant of the hospital for all other purposes. In this case, the lending employer temporarily relinquishes control over his worker and the borrowing employer temporarily assumes contro1 If a physician has supervisory control and the right to give orders to a hospital employee in regard to the particular act in the performance of which employee is negligent, the physician becomes legally liable for the harm caused by the employee.

            If a swab, sponge, instrument, etc; is left in the patient’s body after an operation the surgeon is liable for damages. Ordinarily, a surgeon is not liable for the negligence of anaesthetist, and the anaesthetist not liable for the negligence of the operating surgeon. Physicians and Surgeons are not’ responsible for the negligent, acts of competent nurses or other hospital personnel unless such acts are carried out under ‘their immediate supervision and control. If ’a’ physician ha written a(,prescription properly. i.e. is not liable for a pharmacist’s negligence in compounding it, but he may be liable -when he orders a prescription over the telephone resulting in misunderstanding as to the ingredients or their dosage. When a doctor recommends another physician to his patient after due care, he is not liable for the negligence of the new physician.
Hospitals cannot be held responsible for the negligent acts of members of the superior medical staff in the treatment of patients, if it can be proved that the managers exercised ‘the due care and skill’ in selecting properly qualified and experienced staff. Hospital management will be held responsible for the mistakes of resident physicians and interns in training, who are considered employees when performing their normal duties. A physician is responsible for the acts of the interns and residents carried out under his immediate direction and control.

            The professional status of the employee performing medical acts does not bar the application of vicarious liability. Neverthel every doctor will be liable in law for his own negligence. His employer may be ordered by the court to pay compensation to the neglected patient. In such cases, the employer can engage in “third party proceedings” against the doctor, seeking to be reimbursed.

            When employers provide medical services to their employees, or conduct pre employment examinations of prospective employees, they may be liable for the negligence of their medical personnel. Insurers who have contracted to provide medical services may be liable for the negligence of their physicians. The employer, or the insurer, of employees covered by Workmen’s Compensation Act, may be liable for the negligence of their doctors.

            Cassidy V. Ministry of Health A patient’s hand became useless due to negligent postoperative treatment given by Assistant Medical Officer, house-surgeon and nursing staff of the hospital. The Court of Appeal in England held that the hospital authority was responsible for negligence.

PRODUCTS LIABILITY

            Products liability describes the physical agent which caused the injury in a situation in ‘which a’ person is under a legal duty to the injured person. The injury or death of a patient may result from the unexpected by-product of faulty, defective or negligently ‘designed medical or surgical instruments or inadequate operating instructions. The manufacturer becomes responsible for injury or death in such cases. The plaintiff must prove that the defendant manufacturer departed from standards Of ‘due care, with respect to negligent design, manufacture, assembly, packaging, false and deceptive advertising, failure to test and inspect for defects or failure to Warn or give adequate instructions.

            If the instrument functioned satisfactorily in previous Operations or for several previous years it the hospital’s possession, is a proof’ ‘that it was not defective at the time of supplying. If subsequently the instrument develops a defect through ordinary and gradual” wear and tear,’ or,, if the physician or the hospital misuses the manufacture’s medical products, the negligence liability would be imposed only on the hospital or physician owner for the failure to inspect, test and repair such defects. The manufacturer becomes responsible if the plaintiff can prove that the subsequent development of this defect was due to negligent design, structurally inferior component materials, or improper assembly. An adequate warning cautions the user to follow directions and may also notify the risks of disregarding directions. If the doctor or the hospital misuse the medical product the manufacturer will not be liable for injuries caused by,, defects resulting from the misuse.

            The manufacturer ‘of medications has a legal duty to use: care in research an4 development of drugs. The drug manufacturer should recommend to the medical profession (1) The conditions of prescribing (2) the disorders to be relieved; (3) precaution nary measures to be taken, and (4) the side effects produced. Injury f a patient due to a drug reaction can result from the negligence or breach -of warranty on the part of manufacturer which is a valid cause of action against a manufacturer the manufacture-r is also liable due to the harm caused by contamination of a drug. Once the physician has been warned about- potential side-effects, the manufacturer has no duty to ensure that the warning reaches the patient under normal circumstances.

            The plaintiff has to prove that a defect the product existed before-it left the manufacturer’s hands and that the defect was the proximate cause of the plaintiff’s harms

-Evidence will have .to be produced also the drug’s physical - and; chemical qualities-, o as to show a need to warnings. The product would be defective, if a drug manufacture knew or should have known the presence of certain adverse, effects and then failed to- warn. Causal connection should be established between the lack of warning and the resulting harm.

MEDICAL INDEMNITY INSURANCE

            Just as medicine grants -immunity, Insurance grants indemnity. Medical Indemnity Insurance is a broad based cover for professional liabilities. It wits’ originally sponsored as a scheme by the Indian -Medical Association for its members and later extended to the doctors who are not members of the. I. M. A. No doctor, however skilful or attentive to his patients is immune. from proceedings which may sometimes started on: flimsy -or’ imaginary grounds.

The objects o-f Medical indemnity Insurance are -:

            (1) To- look after - and protect the professional interests of-insured doctor (2) To arrange,- conduct -for the defence of such doctors 3) To arrange all -other - -professional assistance including pre-litigation- advice. (4) To indemnify the insured doctor in respect; of any loss or expense directly arising from actions, proceedings, claims- and demands against him on grounds of professional negligence, misconduct.

            When any dispute or allegation of negligence arises, the society must be contacted

before any admissions or correspondence are entered into:

EUTHANASIA (Mercy Killing):

            It means granting painless death to a hopelessly non curable disease.

Types:

(1) Active or positive. (2) Passive or negative. Active euthanasia is a positive merciful act taken deliberately to end futile suffering or a meaningless existence. It is an act of commission. Death is induced either by direct action to end the life or by indirect action. e.g. by giving large doses of drugs to hasten death. Passive euthanatizes discontinuing or not resorting to the use of extraordinary life-sustaining when such prolongation seems an in warranted extension of suffering or unconsciousness. This includes acts’ of omission, such as, failure to resuscitate a terminally ill or hopelessly incapacitated patient or a severely defective new-born infant. It is refraining from action that would probably death and permits natural death to occur.

            Voluntary euthanasia means at the will of the person, and involuntary means against the will of the person, i. e. compulsory.

            Non-voluntary refers to cases of persons is capable of making their wishes known, e. g. in persons with irreversible coma or severely defective ‘infants.

            Euthanasia advocates the administration of lethal doses of opium or other narcotic drugs. It has no legal sanction.

CONSENT TO MEDICAL EXAMINATION

            Consent means voluntary agreement, compliance or permission. To be legally valid it must be given after understanding what it is given for, and of risks involved.

Kinds of Consent:

Consent may be: l) express, i.e. specifically stated by the patient, or (2) Implied. Express consent may be (a) Verbal, (1)) written.

            An adult patient of sound mind who (1) knows that he can, either agree or ref us to submit t an operation (2) knows or has been or fairly informed b his doctor as o what is to he 4one, and (3) then co-operated with to physician, has impliedly consented even though he has no consented in “words The tact that a patient attends the hospital or summons the doctor to his house complaining of illness, implies that he consents to a general physical examination, to determine the nature of the ailment. Consent is implied injection Such implied consent is the consent ordinarily given In routine practice.

            A third person who is a disinterested party, not a friend or relative of the patient, should be present when an intimate examination is made.

Informed consent:

Informed consent implied  understanding by the patient of (1) the nature of his condition. (2) the nature of the proposed treatment or procedure. (3). the alternatives to such course of action, (4) the risks involved in both the proposed and alternative procedure, and (5) the relative chances of success or failure of both procedures, so that be may reject the procedure.

            All disclosures must be in language the patient can understand. This disclosure will very much reduce malpractice litigation, when the results are unsatisfactory or untoward.

            The law of “full disclosure “could result in alarming a patient who is already unduly apprehensive or who is an emotionally disturbed individual, and who may refuse the treatment when there is in reality little risk. The facts which a doctor must reveal depend on the normal practice in his community and on the circumstances of the case. The doctor need not disclose risks of which the particular patient is already aware or risks of which he himself is unaware. The patient must show that the doctor did upto adhere to accepted medical standards to prove liability for lack of informed consent;

            “Therapeutic privilege” is an exception to the rule of ‘full disclosure’ In these cakes the doctor may exercise discretion as to the acts which he discloses. In these cases the doctor should carefully note his decision in the patient’s record explaining hi intentions and the reasons thereof. He request a consultation to establish that the patient is emotionally disturbed If possible, the physician should explain the risks the patients spouse or next to kin.

Reasons for Obtaining Consent:

1.      To examine, treat or operate upon a patient with out consent in law, even if it does not cause any harm are even if it is beneficial and done in good faith The patient may recover damages (2) If a medical prac4tioner fails to give the requisite information to a patient before asking for his consent to a particular operation or treatment, he may be charged for negligence

RULES OF CONSENT

1.      Consent is necessary in every medical examination. Ordinarily, formal consent to medical examination is not required because the patient conducts himself in a manner which implies consent.

2.      Written consent is not necessary in any case. However, it should be taken for proving the same in the court if necessity arises.

3.      Any procedure beyond physical examination, such as, operation, blood transfusion, co1leacilb, requires express consent. It must be taken before the act but not at the time of admission into the hospital.

4.      The consent should be free, voluntary, clear, intelligent, informed, direct an4 personal. There should be no undue influence fraud, misrepresentation of facts, compulsion and threat of physical injury, death or other consequences. All medical procedures will have risks; the greater the risk, that greater the duty to inform. Unless therapeutic reasons contra- indicate, make a simple, but honest disclosure commensurate with the risk in all cases and ask the patient to choose what risk he wishes to run with his body. If therapeutic reasons cop traiii4icate informing the patient a responsible relative of the patient should, be informed and his consent taken.

5.      The doctor should inform the patient that he has right to refuse to submit’ to examination and ‘that the result ma go against him. If he refuses, it is an about bar for examination. Oral consent should be obtained in the presence of a ‘disinterested third party, e.g. nurse. Written consent should refer to on specific procedure, and blanket permission to hospital.

6.      The doctor should explain the object of the examination to the patient, and he should be informed that the findings will be embodied ma medical report. He should also inform the person that he hag the right to refuse to submit to examination.

7.      In criminal cases, the victim cannot be examined without his/her consent. The court also cannot’ compel a person to get medically examined, against his will. (A) In cases of rape, the victim should not be examined without consent, preferably written. (B). In medico-legal cases of pregnancy delivery and abortion, the woman  should not be examined without her consent. .

8.       (A) When a person is arrested on a charge of committing an offence and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, a registered medical practitioner can examine such person, even by using reasonable force if the examination is requested by a police officer not below the rank of Sub— Inspector.
(B) In the case of a female, the examination should be made only by or under t. supervision of a female registered medical practitioner

9.      In cases of drunkenness the person should not be examined, and blood, urine or breath should not be collected without his consent. But, if the person becomes unconscious or incapable of giving consent, examination and treatment can be carried .that: The consent of guardian or of relatives if available should be taken. The person can be examined without consent, if requested by sub-inspector of police.

10.  A prisoner can be treated forcibly without consent in the interest of the society.

11.  Consent given for committing a crime, or an illegal act,’ such as criminal abortion, is invalid

12.  A person above l8 years of age can give valid consent to suffer any harm which result from an act not intended or not know it cause death or grievous hurt A, person may be suffering from La disease which is certain to shorten his life. He can give free and informed consent to take the risk of operational which though fatal in the majority of cases is the only available treatment The surgeon cannot ‘be held responsible, if the ‘patient dies.

13.  A person above 18 years of age can give valid consent to suffer any harm which may result from an act, not intended cannot known to cause death, done in good faith and for its benefit, (Sec. gg, I. P. C.). If a surgeon operates on a’ patient in good faith and for his benefit ‘eve though: the operation is a risk he cannot be held responsible if the patient dies.

14.  A child under 12 years of age and an insane person cannot give valid consent to suffer any harm which may Occur from an act done in good faith and for it benefit. The consent of the parent or guardian should be taken (Sec.89,1,P,C.). If they refuse, the doctor cannot treat the patient even to save the life. A father giving consent for an opera the child’ in good faith and for thud’s benefit, even though the operation ‘is risky cannot held responsible if the dies.

15.  A consent given by a person under fear of injury, o under, a misconception of a fact valid. e consent given by a in an or intoxicated person, who is unable to understand the nature and consequences of that to which he gives his consent, is invalid (Sec. 90, T.P.C.)’ To represent to a patient that an operation is necessary to save life or to preserve health when that is not the cage or to indicate that it will give greater relief than there is any reasonable prospect of obtaining is to perpetrate a fraud on the patient that vitiates his consent.

16.  Any harm caused to a person in goad faith, even without that person’s consent is not an offence, if the circumstances are such that it is impossible for the person to signify consent, and has no guardian or ‘other person” in ‘lawful charge of him from whom it is possible to obtain consent in time for the thing to be done in benefit (Sec. 92, I. P. C.). A person may be involved in an accident, which may necessitate an amputation if it is ‘done ‘without his consent it is not, an offence. man emergency the law implies consent. An emergency is defined as a medical Situation such as render immediate treatment advisable either to save life or to safeguard health.

17.  The doctor should inform reasonably to ‘the patient about the nature, consequences and risks of the examination or ‘operation before taking the consent. In obscure case the doctor should obtain an ‘open consent to use his discretion. When there are two or more methods of treatment, the patient should be ‘allowed to choose and give consent for any method.

18.  For contraceptive sterilization, consent of both the husband and wife should be obtained. If in the course of an operation to which the patient has consented, the physician discover& conditions that had hot been’ anticipated before the began, and which would ‘endanger the life or health of the, patient, if the doctor would, in extending the operation o correct them, even though no express consent was obtained. If an anaesthetist administers a type f anaesthetic expressly prohibit by the patient, he will be responsible for damages resulting from an unfortunate occurrence caused by the anaesthetic, even though there is no negligence in its administration.

19.  The consent of one spouse is not necessary for an operation or treatment of the other. ‘A husband has no right to refuse consent to any operation, including a gynecological operation, which is required to safeguard the health of his wife. The consent of wife is enough. It is advisable to take the consent of the spouse whenever, especially, if the operation involves danger to life, may destroy or limit sex functions, or may result in the death of an unborn child.

20.  Consent of the inmates of the hostel, is necessary if they are above
Within 12 years, principal or warden can give consent. If an inmate above l2 years refuses treatment, and he is likely to spread the disease, he can be asked to leave the hospital. However, if he stays in the hostel he can be treated with out his consent.

21.  It is unlawful to detain an adult patient in hospital against his will. If a patient demands discharge against medical advice this should be recorded and his signature obtained.

22.  The nature of illness of a patient should not be disclosed to any third party without the consent of the patient.

23.  When an operation is made compulsory by law, e. g. vaccination, the law furnishes the consent.

24.  Consent is not defence in cases of professional negligence.

25.  Pathological autopsy should not be conducted without the consent of the guardian or legal heirs of the deceased. : If the autopsy is’ done without cons at the doctor is liable for damages for the mental anguish suffered by heirs due to the mutilation of the body. Specific authorization should be obtained for retention ‘of organs and parts of the body. in medico-legal autopsies consent is• not required.

26.  It any person has donated hi eyes to be used for theraupeutic purpose after his death, the eyes can be removed only with the consent of the guardian or legal heirs. .

27.  A living adult person can give consent for donating one of his kidneys to be grafted into another person. The donor must be informed of the procedure involved and possible consequences and risks. The donation should not be accepted if there is any risk to life of donor.

28.  For organ transplantation, the organs of the dead person, such as, heart, kidneys, liver, etc., should not be removed without the consent of the person having lawful possession of the body. Precautions should be taken to preserve the anonymity of both donor and recipient.

29.  There is no special form for obtaining written consent. It may be written in any manner, provided it conforms to the rules of consent.

            In Moss V. Rishworth, a 11 year old girl was taken to a surgeon for removal of tonsils and adenoids by her two adult sisters. The child died under the anaesthetic. The court held that there was no emergency which would excuse the need for parental consent, and that th father could recover damages.

            In Jockovach V. Yocum, the arm of a 17 year old boy was crushed by a train. The boy’s arm was amputated immediately as the doctors could not contact the parents. The consent of the parents was implied by the emergency.

            In Wells V. Mc. Gehee, a 7 year old huld died under anaesthesia for treatment
a broken arm, which was given without he consent of the mother as she could not e contacted. The court held that an mergency existed.

            Dr. Drummond’s case: Drummonds, sued a. woman patient for .recovery of fees. he patient coupter-claimed damages, as a lang was administered t her without her consent. She alleged that phenobarbitone, hich she refused to take, Was jx ‘in oup an meal and given: to het daily, hich prolonged her stay in the nursing home, as a psychological. consequence for 16 weeks The court held tit the administration of drug to a person without that persons knowledge and consent was assault and awarded nominal damages as the drug did not cause substantial harm.

Medical Experimentation Human Beings:

            If there is sufficient data indicating the probability of a favorable reaction to the treatment, it may be tried out on human beings, after obtaining informed consent of the patient. The treatment should be given cautiously and its aftereffects should be noted and appreciated. it would be unethical to do something merely by way of experimentation, i.e., which is not strictly related to the cure of the patient’s illness. There must also be no great risk in the proposed experimentation, even if the patient consents to run the great ;risk. A new experiment should not be undertaken merely to find out its efficacy, if there is already a treatment which is equally efficient. The experimentation should be stopped as soon as an ill-effect is noted which should be immediately remedied. In considering whether a new treatment is as efficacious as an old one the side-effects of the two treatments and their costs should be considered.

The workmen’s Compensation Act, 1923:

            This Act provides for the payment of compensation to workmen for injuries sustained by them by accident, arising out of and in the course of their employment. If a workman is killed, his dependents will be entitled to compensation for his death. Under the Act, if a workman contracts any disease specified therein as an occupational disease peculiar to that employment, (anthrax, primary cancer of the skin, pathological manifestations due to x-rays, radium, etc., poisoning by lead, phosphorus, mercury, arsenic) it is deemed to be an injury by accident for purpose of compensation. The amount of compensation depends upon whether the injury has led to death, permanent total disablement, or permanent partial disablement.

            The employer is not liable to pay compensation in respect of any injury not resulting in death, caused by an accident, if the workman was under the influence of drink or drug or wilfully disobeyed the rules of safety. In all industrial diseases and injuries, medical evidence will be necessary. As such, it is important for a doctor to keep comj1ete records of any injury, sustained by a patient during the course of employment. There may be a considerable delay between the sustaining of the injury and subsequent legal proceedings, which may extend to some years, if time for the development of some disability is taken into account.

            It should be determined whether or not there is any causal relationship between an accident or injury and a death and of acceleration or aggravation of a preexisting natural disease process. He should diagnose and evaluate the presence and extent of occupational disease.

            A medical practitioner is asked to examine a workman either on his own behalf or on behalf of the employer. The doctor must be very careful in making a thorough examination of the injured workman to assess the degree and extent of damage caused.

Employees State Insurance Act, 1948:

            The Act provides a scheme of compulsory health insurance for industrial workers. It is administrated by the Medical Benefit Council. It provides for the establishment and maintenance of hospitals, dispensaries, etc. The insured worker is entitled to a sickness cash benefit, maternity benefit, disablement and dependent’s benefit and medical treatment.

The Leper’s Act 1898:

            This Act provides for the segregation and medical treatment of pauper lepers and for the control of lepers following certain callings. A leper is any person suffering from any variety of leprosy. A pauper leper can be arrested without warrant by a police officer and taken to a qualified medical practitioner, for certification. Then he is taken to the Magistrate, who can order such person to’ be detained in a leper asylum.

            The State Government may notify that no leper can personally prepare for sale, or sell any article of food or drink or any drugs or clothing intended for human use, that he cannot bathe in, or wash clothes in or take water from any public well or tank1 that be cannot drive, conduct or ride in any public carriage plying for hire other Ihan a railway carriage.

MALINGERING

            Malingering or shamming means feigning a disease. This may resorted to for several reasons, such as, soldiers or policemen to evade their duties by prisoners to avoid hard work, by businessmen to avoid business contracts, by workmen to claim compensation, by beggars to attract public sympathy, by criminals to avoid legal responsibility etc. The diseases that may be feigned are many. The patient may injure his nasopharynx with a sharp instruments, swallow the blood and regurgitate it in front of the doctor to mimic haematemesis. A skillful puncturing of the anal or vaginal mucosa, may produce a realistic bleeding episode. The excessive intake of digitalis may simulate a heart condition. Eating of large amounts of carrot will produce carotinaemia and may simulate jaundice. Chronic ingestion of coumarin will induce a haemorrhagic diathesis. In many cases it is difficult.

            The history of the case should be taken from the person himself, and his relatives or associates. Usually the signs and symptoms do not conform to any known disease. Malingering can be diagnosed by keeping the patient under observation and watching him without his knowledge. A thorough examination is essential, after removing the bandages if any and washing the part. Rarely administration of an anaesthetic may be necessary to detect malingering.