Review of Forensic Medicine and Toxicology (Including Clinical & Pathological Aspects) Gautam Biswas
INDEX
×
Chapter Notes

Save Clear

1
1Jurisprudence and Forensic Medicine
  • 1. Medical Jurisprudence and Ethics
  • 2. Acts Related to Medical Practice
  • 3. Legal Procedure
  • 4. Identification I
  • 5. Identification II
  • 6. Medico-legal Autopsy
  • 7. Autopsy Room Hazards
  • 8. Thanatology
  • 9. Signs of Death
  • 10. Asphyxia
  • 11. Injuries
  • 12. Firearm Injuries
  • 13. Regional Injuries
  • 14. Thermal Injuries
  • 15. Transportation Injuries
  • 16. Explosion Injuries and Fall from Height
  • 17. Medico-legal Aspects of Injuries
  • 18. Decompression, Radiation and Altitude Sickness
  • 19. Starvation Deaths
  • 20. Anesthetic Deaths
  • 21. Infanticide and Child Abuse
  • 22. Abortion
  • 23. Impotence and Sterility
  • 24. Virginity, Pregnancy and Delivery
  • 25. Sexual Offences I
  • 26. Sexual Offences II
  • 27. Sexual Offences III
  • 28. Postmortem Artifacts
  • 29. Forensic Psychiatry
  • 30. Bloodstain Analysis
  • 31. Seminal Stains and Other Biological Samples
  • 32. Dna Fingerprinting
  • 33. Torture and Custodial Deaths
  • 34. Medico-legal Aspects of Hiv
  • 35. Newer Techniques and Recent Advances 2
  • Question Bank-I

Medical Jurisprudence and EthicsCHAPTER 1

 
 
Definitions
  • Forensic medicine* (Legal medicine or State medicine): It is the application of principle and knowledge of medical sciences to legal purposes and legal proceedings so as to aid in the administration of justice.
  • Medical jurisprudence (Latin juris: law, prudentia: knowledge or skill): It is the application of knowledge of law in relation to practice of medicine. It includes:
    1. Doctor-patient relationship
    2. Doctor-doctor relationship
    3. Doctor-State relationship.
  • Medical etiquette: These are the conventional laws and customs of courtesy which are followed between members of same profession.1 A doctor should behave with his colleagues, as he would like to have them behave with him, e.g. he should not charge another doctor or members of his family for professional service.
  • Medical ethics: It is concerned with moral principles for the members of the medical profession in their dealings with each other, their patients and the State. It is a self-imposed code of conduct assumed voluntarily by medical professionals.
Forensic science refers to a group of scientific disciplines which are concerned with the application of their particular scientific area of expertise to law enforcement, criminal, civil, legal and judicial matters. Forensic scientists examine objects, substances (including blood/drug samples), chemicals (paints/explosives/toxins), tissue traces (hair/skin) or impressions (fingerprints/tyremarks) left at the scene of crime—a multidisciplinary subject.
 
Medical Council of India (MCI)
The Medical Council of India is a statutory body charged with the responsibility of establishing and maintaining uniform standards of medical education, and recognition of medical qualifications.
Indian Medical Degrees Act, 1916: This Act was passed to regulate the grant of titles implying qualification in Western Medical Science.
The Indian Medical Council (IMC) Act, 1956: The Medical Council of India was established in 1934 under the Indian Medical Council Act, 1933. In 1956, the old Act was repealed and a new one was enacted. This was further modified in 1964, 1993 and 2001. The government superseded the MCI by issuing an ordinance in May 2010. The Central Government constituted the board of governors (BoG), comprising of not more than 7 members with one of them as chairperson till the new council was to be elected (time frame given was of 2 years). The government was liable to get the ordinance converted into a bill within 6 weeks from the date of the commencement of Parliament. Since then, the health ministry sought extension of the tenure of BoG governing MCI four times till 2013. With the government unable to get the Indian Medical Council (Amendment) Bill passed in Parliament, the old IMC Act that provided autonomy to the regulatory body was restored.
 
 
Constitution of IMC
  1. One member from each state other than a Union Territory, nominated by the Central Government in consultation with the State government concerned.
  2. One member from each university, to be elected from amongst the members of the medical faculty of the university.
  3. One member from each state in which a State Medical Register is maintained, to be elected from persons enrolled on such a register.
  4. Seven members to be elected by persons enrolled in any of the State Medical Registers.
  5. Eight members are nominated by the Central Government.
The President and Vice-President are elected from amongst these members.
____________
*Latin forensis: of or before the forum. In Rome, ‘forum’ was the meeting place, where civic and legal matters used to be discussed by those with public responsibility.
 
Schedules
  • 4First Schedule of the IMC Act contains recognized medical qualifications granted by universities in India.2 Any medical institution which grants a qualification not included in the First Schedule may apply to the Central Government and after consulting the Council may amend the First Schedule, and the same is entered in the last column of the First Schedule.
  • Second Schedule contains recognized medical qualifications granted outside India.3 The Council may enter into negotiations with the Authority in any country outside India for the scheme of reciprocity for the recognition of medical qualifications, and the Central Government may amend the Second Schedule, and the same is entered in the last column of the Second Schedule.
  • Part I of the 3rd Schedule contains qualification granted by medical institutions not included in 1st Schedule, like Licensed Medical Practitioner (LMP) and diplomas which were granted before independence or with certain preconditions.
  • Part II of the 3rd Schedule contains qualification granted outside India, but not included in 2nd schedule and certificates/diploma approved by the examining boards of the US.
The Council should:
  • Constitute an Executive Committee from amongst its members.
  • Appoint a Registrar who will act as Secretary and who may also act as Treasurer.
 
FUNCTIONS of MCI
  1. Maintenance of Indian Medical Register
    • It contains the names, addresses and qualifi­cations of the medical practitioners who are registered with any State Medical Council (SMC).
    • Removal of the name from the register of the concerned SMC will lead to its removal from Indian Medical Register.
  2. Regulation of standard of undergraduate and postgraduate medical education
    • The Council maintains the standards of under­-graduate medical education. The Council prescribes courses and criteria which a medical institute should fulfill for a particular course of study.
    • The Council sends inspectors to see that the college is adequately spaced, staffed and equipped as per MCI stipulations. The inspector may also visit the institution during the examinations to assess the standard of education.
    • On the basis of the reports of the inspectors, the MCI recommends the recognition or non-recognition of the medical qualification to the Central Government.
    • Such an inspection is held for every medical qualification when it is introduced and every 5 years thereafter.
    • The Council has the authority to prescribe standards of postgraduate medical education for the guidance of the universities.
  3. Permission for establishment of new medical college, new course of study and increase in seats: Permission of the Central Government is obtained after the recommendations of the Council which may either approve or disapprove the scheme.
  4. Recognition of medical qualification granted by universities in India: Any university which grants a medical qualification not included in the 1st Schedule may apply to the Central Government, to have such qualification recognized, and the Government, after consulting the Council, may amend the 1st Schedule.
  5. De-recognition of medical qualification: It can make representation to the Central Government to withdraw recognition of a medical qualification of any college, if on receipt of report from inspectors it feels that the standards of resources, training/teaching are not satisfactory.
  6. Recognition of foreign medical qualifications under the scheme of reciprocity: The Council may enter into negotiations with the authority in any country outside India under a scheme of reciprocity for the recognition of medical qualifications. A separate examination may be conducted by the MCI to assess the standard of knowledge possessed by such individuals, before recognizing their degree.
  7. Appellate powers: It advises the Central Health Ministry when an appeal is made by a medical practitioner against the decision of the SMC on disciplinary matters. Its decision is binding on the appealing party as well as the SMC.
  8. Disciplinary control: The Council prescribes minimum standards of professional conduct, etiquette and a code of ethics for medical practitioners. It issues a warning notice periodically which is a list of 5offences constituting infamous conduct (professional misconduct). It can take actions against erring doctors and issue warning in relation to unethical practices which are regarded as disgraceful in a professional respect.*
  9. Certificates: It is empowered to issue certificates of good conduct and character to medical students/doctors going abroad for higher studies/service.
  10. CME programmes: It sponsors and organizes continuing medical education (CME) programmes for medical practitioners.
  11. Faculty development programme: MCI has under­taken the task of training the medical college faculty upto the level of Associate Professors in MCI Basic Workshop in Medical Education Technologies. Faculty should undergo this training either before joining service or during probation period and once every 5 years thereafter.
MCI has asked the health ministry to make it mandatory for all doctors to re-register with the SMCs and MCI every 5 years. This will help in tracking the number of doctors still alive and practicing in the country and registered with MCI.
There is no provision in the existing IMC Act for re-registration or revalidation of doctors. Medical Councils of certain states like Punjab, Delhi, Odisha, Rajasthan and Maharashtra have provision for re-registration of doctors under their respective statutes.
Doctors who have already got permanent registration/registration of additional qualifica­tion with any SMC are not required/eligible for re-registration with the MCI.
 
State Medical Council (SMC)
Composition of the State Medical Council
  • Medical teachers from different universities of the state elected by the teachers of different medical institutions.
  • Members elected by registered medical practitioners of the state.
  • Some members are nominated by the State Government.
They elect a President and a Vice-President from amongst themselves.
 
Functions of SMC
  1. Maintenance of Medical Register
    • Maintains a register of medical practitioners within its jurisdiction.
    • On payment of prescribed fees, the name, address and qualifications are entered in the register.
    • A provisional registration is granted to a student who has passed the qualifying examination, but has to undergo a certain period of training (internship for 1 year) in an approved institution, and permanent registration is granted after that training period.
    • Additional qualification obtained subsequent to registration or for any alteration may be done after payment of requisite fees to the SMC.
  2. Renewal of registration: Medical practitioners need to participate in CME programmes for at least 30 hours (h) to renew their registrations every 5 years. Several states are planning to bring legislation in order to make the process re-registration mandatory for doctors.
  3. Disciplinary control: The Council is entrusted with disciplinary control over the registered medical practitioner (Flow chart 1.1). SMC can issue warning, suspension or penal erasure of the name of medical practitioner found indulging in unethical practice, and advises them to conduct themselves according to the ethical norms prescribed by the Council. It can act against doctors for professional negligence too.
    • The SMC takes cognizance of any misconduct (professional) in case:
      • The medical practitioner has been convicted by court for any criminal offence
      • A complaint has been lodged against him by some person or body.
        zoom view
        Flow chart 1.1: Disciplinary functions of State Medical Council
____________
* It may be noted that a ‘warning notice’ is different from a ‘warning’. The warning notice is a list of offences which are considered as infamous conduct. Warning is a cautionary notice given by the MCI/SMC after enquiry on finding a doctor guilty of infamous conduct.
  • 6Upon receipt of any complaint, the SMC would hold an enquiry and give opportunity to the registered medical practitioner to be heard.
  • If the doctor is found to be guilty of committing professional misconduct, the Council may punish as deemed necessary or may direct the removal of the name of the delinquent practitioner from the register, altogether or for a specified period.4
  • Decision on complaint against delinquent physician is taken within a time limit of 6 months.
  • An inquiry against a doctor should be initiated by SMC with which he/she is registered. The role of the MCI is only as an appellate authority to the Central Health Ministry to decide on an appeal against the decision of the SMC on disciplinary matters.5
  1. Removal of name of medical practitioner: SMC is empowered to erase from the register the name of any registered medical practitioner with whom it is unable to establish communication.
  2. Restoration of name of medical practitioner: It can direct restoration of any name of registered medical practitioner so removed.
 
Duties of a Doctor (Flow chart 1.2)
Under the Indian Medical Council Act, 1956, the MCI, with the approval of the Central Government, made the following regulations which are called the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 (amended in 2009).
 
 
Code of Medical Ethics: At the time of registration, all the doctors are self-warned about certain unethical practices (infamous conduct) and the disciplinary action by the SMC (also called as warningnotice). The applicant should certify that he/she has read and agreed to abide by the same, and submit a declaration duly signed.
zoom view
Flow chart 1.2: Duties of a medical practitioner
  • Hippocratic Oath: The Hippocratic Oath is traditionally taken by physicians, in which certain ethical guidelines are laid out. Several parts of the Oath have been removed or re-worded over the years in various countries, schools and societies.
  • Declaration of Geneva: The Declaration of Geneva was intended as a revision of the Hippocrates Oath to a formulation of that oaths’ moral truth that could be comprehended and acknowledged modernly. It was adopted by the General Assembly of the World Medical Association (WMA) at Geneva in 1948 and amended in 1968, 1984, 1994, 2005 and 2006.
  • Declaration of Tokyo: This was adopted in 1975 (amended in 2005 and 2006) during the assembly of the WMA. It refers to the guidelines for doctors concerning torture, degradation or cruel treatment of prisoners.6
  • Declaration of Helsinki: The WMA originally developed this declaration in 1964 and underwent major revision in 1975. It refers to the ethical principles for medical research involving human subjects, including research on identifiable human material and data.7
  • Declaration of Oslo: It was a statement by the WMA in 1970 on therapeutic abortion and amended in 1983 and 2006.8
  • Declaration of Malta: This was adopted by the WMA in 1991 (revised in 1992 and 2006) for hunger strikers. The principle of beneficence urges physicians to resuscitate them, but respect for individual autonomy restrains physicians from intervening when a valid and informed refusal has been made.
  • Declaration of Lisbon: This was adopted by the WMA in 1981 (amended in 1995 and 2005). The declaration represents some of the principal rights of the patient that the medical profession endorses and promotes.
  • Declaration of Ottawa: This declaration on child health was adopted by the WMA in 1998 (amended in 2009). Physicians along with parents, and with world leaders to advocate for healthy children.
 
­­­Duties of a Doctor in General
  1. Character of physician: A physician should uphold the dignity and honor of his profession and render service to humanity; reward or financial gain is a subordinate consideration.
  2. Maintaining good medical practice
    • The physician should try to improve medical knowledge and skills, and should practice methods having scientific basis. He should participate in professional meetings, i.e. CME programmes for at least 30 h every 5 years.
    • Membership in medical society: He should affiliate with associations and societies for the advancement of his profession.
  3. Maintenance of medical records
    • Physician should maintain the medical records of his indoor patients for a period of 3 years from the date of commencement of the treatment.97 In a case where medical records and consent obtained from a patient were not produced, negligence was established.
    • On request for medical records, either by the patients or legal authorities, the same should be issued within the period of 72 h. This applies to a doctor in his private capacity, in case of indoor patients whom he/she might have treated/operated in hospital/nursing home.
    • He should maintain a register of medical certificates issued. He should record the signature and/or thumb mark, address and at least one identification mark of the patient and keep a copy of the certificate.
  4. Display of registration numbers
    • Physician should display the registration number accorded to him by the SMC in his clinic and in all his prescriptions, certificates, money receipts given to his patients. A doctor was held guilty for printing incorrect information about his qualification on the prescription paper.
    • Physicians should display as suffix to their names only recognized medical degrees or such certificates/diplomas and memberships/honors which confer professional knowledge.
  5. Use of generic names of drugs: Physician should prescribe drugs with generic names, and ensure that there is a rational prescription and use of drugs.
  6. Highest quality assurance in patient care: He should not employ in connection with his professional practice any attendant who is not registered or permit such persons to attend, treat or perform operations upon patients wherever professional discretion or skill is required.
  7. Exposure of unethical conduct: Physician should expose, without fear or favor, incompetent or corrupt, dishonest or unethical conduct on the part of members of the profession.
  8. Payment of professional services
    • Physician should clearly display his fees in his chamber and/or hospitals he is visiting.
    • He should announce his fees before rendering service and not after the operation or treatment is underway.
  9. Evasion of legal restrictions: Physician should observe the laws of the country in regulating the practice of medicine and should not assist others to evade such laws.
 
Duties of a Doctor towards the State
  1. Poisoning cases
    • He should assist the police in determining whether the poisoning is accidental, suicidal or homicidal.
    • In case of death, death certificate should mention about the poisoning with recommendation for postmortem examination.
  2. Notification: Doctor is bound to give information of communicable diseases (notifiable diseases), births, deaths and outbreak of an epidemic to public health authorities. Failing which he is not only liable for criminal penalties, but also negligence suits brought by affected persons.
    A notifiable disease is any disease that is required by law to be reported to government authorities, e.g. cholera, plague, leprosy, diphtheria, typhoid fever, tetanus, measles, tuberculosis, chicken pox, acute poliomyelitis, encephalitis, influenza, dengue fever, hemorrhagic fevers, hepatitis, HIV, etc.
  3. Geneva Convention
    • In 1949, in Geneva, four conventions were agreed upon. Each convention lays down the persons it protects.
    • The wounded or sick of the armed forces (1st convention), ship-wrecked (2nd convention), prisoners of war (3rd convention) or civilians of enemy nationality (4th convention) are to be treated by the physician without any adverse distinction based on sex, race and nationality.
  4. Responding to emergency military service as and when required.
 
Duties of a Doctor towards Patients
  1. Exercise reasonable degree of skill and knowledge
    • It begins the moment the physician-patient relationship is established (i.e. when the physician agrees to treat the patient).
    • He owes this duty even when the patient is treated free of charge.
    • It neither guarantees cure nor an assured improvement.
    • A practitioner (e.g. MBBS) is not liable because some other doctors of greater skill and knowledge (e.g. MD/MS) would have prescribed a better treatment or operated better in the same circumstances.8
  2. Attendance and examination
    • When a doctor agrees to attend a patient, he is under an obligation to attend to the case, as long it requires attention.
    • He can withdraw after giving reasonable notice or when he is asked by the patient to withdraw.
    • If the doctor is called by police to attend a case of road side accident, he may give first aid and advice, but no doctor-patient relationship is established.
  3. Furnish proper and suitable medicines
    • He should give a legible prescription. He should write in capital letters—mistakes arising out of illegibly written names of medicines as opposed to other kinds of indecipherable documents—can be very dangerous.
    • Doctor is held responsible for any temporary or permanent damage in health, caused to the patient due to wrong prescription.
  4. Instructions: Doctor should give full instructions to his patients or their attendants regarding use of medicines (quantities and timings), injections (whether to be given intramuscularly or intravenously) and diet.
  5. Prognosis: The patient or his relatives should have such knowledge of the patient's condition as will serve the best interests of the patient and the family.
  6. Control and warn
    • Doctor should warn patients of the side-effects involved in the use of prescribed drug, otherwise it might amount to negligence.
    • If the doctor fails to inform the known dangerous effects of a drug/device, he becomes liable not only for the harm suffered by the patient but also for injuries his patient may cause to third parties.
  7. Third parties: If a patient suffers from an infectious disease, the doctor should warn not only the patient, but also third parties who are close to the patient.
  8. Children and disabled persons being incapable of taking care of themselves, the doctor should arrange for their proper care, e.g. supervised application of hot water bottles.
  9. Consent: A mentally sound adult (> 18 years) must be told of all the relevant facts in non-medical terms and in a language he/she understands and then obtain consent.
  10. Operations
    • Doctor should explain the nature and extent of operation, and take consent of patient.
    • He should take proper care to avoid mistakes, such as operating on the wrong patient or on wrong limb, or leave any instrument or swab inside a body cavity.
    • He should not delegate his duty to operate a patient to another doctor.
    • He should not experiment without valid reason or valid consent from the patient.
    • He should avail the assistance of qualified and experienced anesthetists.
    • Death on operation table should be followed by postmortem examination.
  11. Investigations
    • All cases of accident, unless they are minor, should be X-rayed.
    • For proper diagnosis and to know the progress, the doctor should advise investigations, like biopsy, X-rays, CT scan, etc.
    • Wrong interpretation of X-ray is liable to be held as negligent.
  12. Emergency cases
    • He has moral, ethical and humanitarian duty to help the patient in saving his life.
    • In medico-legal injury cases, a doctor is obliged to give medical aid and to save life of the patient.
  13. Professional secrecy/medical confidentiality Definition:The doctor is obliged to maintain the secrets that he comes to know concerning the patient in the course of a professional relationship, except when he is required by the law to divulge the secrets or when the patient has consented for its disclosure.10
    • It is a fundamental tenet that whatever a doctor sees or hears in the life of his patient must be treated as totally confidential. Disclosure would be failure of trust and confidence.
    • The patient can sue the doctor for damages or face disciplinary action by the SMC, if the disclosure is voluntary and has resulted in harm to the patient and is not in the interest of public.
Following principles should be followed:
  1. Physician should not answer any query by third parties, even when enquired by close relatives, either with regard to the nature of illness or any subsequent effect of such illness on the patient, without his/her consent.9
  2. If the patient is major (≥ 18 years), physician 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 case of minor or insane person, guardians or parents should be informed of the nature of illness.
  3. A doctor should not disclose the illness of his patient without his consent, even when requested by a public or statutory body, except in case of notifiable diseases. If the patient is minor or insane, consent of the guardian should be taken.
  4. Even in case of husband and wife, the facts relating to the nature of illness of one must not be disclosed to the other, without the consent of the concerned person. Particular caution is required over the disclosure of sexual matters, such as pregnancy, abortion or venereal disease, as disclosure might cause conflict between them.
  5. In divorce and nullity cases, no information should be given without the consent of the concerned person.
  6. When a domestic servant is examined at the request of the master, the physician should not disclose any facts about the illness to the master without the consent of servant, even though the master is paying the fees. Similarly, the medical officer of firm or factory should not disclose without the patient's consent.
  7. Medical officers in government service are also bound by code of professional secrecy, even when the patient is treated free.
  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 convicted, he has no such right and physician can disclose the findings to the authorities.
  9. Any information regarding a dead person may be given only after obtaining the consent from a relative.
  10. In examination of a dead body, certain facts may be found, the disclosure of which may affect the reputation of the deceased or cause mental torture to his relatives, and as such, the autopsy surgeon should maintain secrecy.
  11. The medical examination for life insurance policy is a voluntary act by the examinee, and consent to the disclosure of findings may be taken as implied.
 
Duties of a Doctor in Consultation
  1. Consultation for patient's benefit is of foremost importance. Unnecessary consultations should be avoided.
  2. Statement to patient after consultation should take place in the presence of the consulting physician, except if otherwise agreed. Differences of opinion should not be divulged unnecessarily.
  3. Treatment after consultation: The attending physician should make subsequent variations in the treatment, if any unexpected change occurs. The attending physician may prescribe medicine at any time for the patient, whereas the consultant may prescribe only in case of emergency or as an expert when called for.
  4. Patients referred to specialists: When a patient is referred to a specialist by the attending physician, a case summary of the patient should be given to the specialist, who should communicate his opinion in writing to the attending physician.
Consultation is advised with a specialist in the following conditions:
  1. In case of emergency.
  2. If the patient requests consultation.
  3. If quality of care or management can be considerably enhanced.
  4. In cases where diagnosis remains obscure.
  5. In case of homicidal poisoning.
  6. In connection with organ transplantation.
  7. When treatment or operation involves risk of life.
  8. When operation affecting vitality, intellectual or generative functions is to be performed.
  9. When an operation involves mutilation or destruction of an unborn child.
  10. When an operation is to be performed on a patient who has received injuries in a criminal assault.
  11. To take decision about termination of pregnancy case, after 12 weeks and upto 20 weeks of pregnancy.
  12. While dealing with a criminal abortion or an attempted criminal abortion case.
  • A referring physician is relieved of further responsibility when he completely transfers the patient to another physician.
  • The referring physician may be held liable under the doctrine of negligent choice, if it can be proved that the consultant was incompetent or had a reputation as an errant physician.10
 
Responsibility of Doctors towards Each Other
  1. Conduct in consultation: No insincerity, rivalry or envy should be indulged in. All due respect should be observed towards the physician in-charge of the case, and no statement or remark be made, which would impair the confidence the patient has reposed in him.
  2. Consultant not to take charge of the case: Consul­tant should normally not take charge of the case, especially on the solicitation of the patient or friends.
  3. Appointment of substitute: A physician should accept to attend another physician's patients during his temporary absence from his practice, only when he has the capacity to discharge the additional responsibility along with his other duties.
 
Privileged Communication
Definition: It is a statement, made bonafide upon any subject matter by a doctor to the concerned authority having corresponding interest, due to his legal, social or moral duty to protect the interests of the community or of the state.
  • It is an exchange of information between two indi­viduals in a confidential relationship, and an exception to professional secrecy.
  • To be privileged, it must be made to the person who has a duty towards it. If made to more than one person or to a person who has not got a direct interest in it, the plea of privilege fails.
  • Doctor should first persuade the patient to obtain his consent before notifying the proper authority. However, disclosure can be done without consent (if consent is not forthcoming).
Examples
  1. Civic benefit: If there is a potential threat of ‘grave harm’ to the safety or health of the patient and the public, the doctor must decide whether to inform the authority about the condition.
    • For example, a engine or bus driver, pilot or ship navigator may be suffering from epilepsy, hypertension, alcoholism, drug addiction, poor visual acuity or color blindness; or a teacher with tuberculosis or a person with infectious diseases (e.g. enteric infection) working as a cook. In all these cases, the proper course is for the doctor to explain the risks to the patient and to persuade him to allow the doctor to report the problem to his employers. If the patient refuses, then it is always wise to seek the advice of senior colleagues before making any disclosure.
    • A syphilitic taking bath in public pool or a patient with sexually transmitted disease is about to get married is a privileged communica­tion, but an impotent person getting married is not.
  2. Notifiable clauses: Doctor has a statutory duty to notify births, deaths, still births, infectious diseases, therapeutic abortions, drug addictions, epidemic and food poisoning to public health authorities.
  3. Suspected crime: If the physician learns of a crime, such as assault, terrorist activitiy, traffic offence or homicidal poisoning by treating the victim or assailant, he is bound to report it to the nearest Magistrate or police officer.
    • But sometimes, the issue of confidentiality clashes with the need to protect some individual or the public from possible further danger (e.g. a below-age of consent girl came to a doctor with STD). The doctor is usually required to obtain a list of the patient's sexual contacts to inform them that they need treatment. However, the patient may be reluctant to divulge the names of her older sexual partners, for fear that they will be charged with statutory rape. The same issue may arise where a doctor suspects a child or an elderly person, disabled or incompetent person is being abused, but here the overriding consideration is the safety of these individuals.
    • It has been made mandatory to report to the police any case of sexual abuse in children (<18 years) as per the Protection of Children from Sexual Offences Act, 2012.
    • At times, assault may occur within a family, e.g. between spouses or close relatives, the victim may not wish to bring criminal charges, and so the doctor must not assume that consent for disclosure has been given.
    • The doctor knowing or having reason to believe that an offence has been committed by a patient when he is treating, intentionally omits to inform the police, can be punished with imprisonment upto 6 months and with/without fine (Sec. 202 IPC).
  4. Patient's own interest: Doctor may disclose patient's condition to his relatives so that he may be properly treated, e.g. to warn parents/guardians of patient's melancholia or suicidal tendencies.11
  5. Self-interest: In case of civil and criminal suits by the patient against the physician, evidence about patient's condition may be given.
  6. Negligence suits: When doctor is employed by opposite party to examine a patient who has filed a suit for negligence, the information thus acquired is not a professional secret (no physician-patient relationship) and the doctor may testify to such information.
  7. Court ordered examination: If a court orders an examination for the purposes of reporting back to the court about the physical or mental condition of the person, then he/she should be told that examination findings is not confidential. The report becomes part of the court record.
  8. Court of law: Doctor cannot claim professional secrecy concerning the facts about illness of his patient in court of law.10,11 He has to answer the questions about patient's confidential matters to avoid risk penalties for contempt of court.
A doctor can disclose and discuss the medical facts of a case with other doctors and paramedical staff, such as nurses, radiologist and physiotherapist to provide better service to the patient.
Actually, a privilege is a legal rule that protects communica­tions within certain relationships from compelled disclosure in a court proceeding. While some use the terms ‘privileged’ and ‘confidential’ interchangeably, they all protect communications made in confidence in the context of the professional relationship. Like other confidentiality statutes, the privilege statutes grant control over the release of the information to the individual and also define circumstances under which the information may be released without the consent of the individual. In medical context, this term is being used to indicate that the information is shared with one particular individual having corresponding interest.
 
Medical Malpractice
The term ‘medical malpractice’ covers all failures in the conduct of doctors, where it impinges upon their professional skills, ability and relationships.
It divided into two broad types (Diff. 1.1):
  1. Professional misconduct­—where the personal, professional behavior falls below that which is expected of a doctor.
  2. Medical negligence—where the standard of medical care given to a patient is considered to be inadequate.
 
Unethical Acts
A medical practitioner should not commit any of the following acts which may be construed as unethical:
  1. Advertising: He should not:
    1. Solicit patients directly or indirectly, by a physician or a group of physicians or by institutions.
    2. Make use his name for any advertising through any mode (such as in the form of strips on the cable television), so as to invite attention to his professional position.
    3. Give any recommendation, endorsement or statement with respect of any drug, surgical or therapeutic appliance with his name, signature or photograph (no association with manufacturing firms) nor shall he boast of cases, operations or cures or permit the publication of report thereof through any mode.
    4. Print self-photograph or any such material of publicity in the letterhead or on sign board of the consulting room.
    Differentiation 1.1   Professional negligence and infamous conduct
    S.No.
    Feature
    Professional negligence
    Infamous conduct
    1.
    Offence
    Absence of care and skill or willful negligence
    Violation of code of Medical Ethics
    2.
    Duty of care
    Should be present
    Need not be present
    3.
    Damage to person
    Should be present
    Need not be present
    4.
    Trial by
    Courts—civil or criminal
    State Medical Council
    5.
    Punishment
    Fine, imprisonment or both
    Erasure of name or warning
    6.
    Appeal
    Higher court
    MCI and Central Government
    12A medical practitioner is, however, permitted to make a formal announcement in press regarding the following:
    • On starting or resumption or change of type of practice.
    • On changing address.
    • On temporary absence from duty.
    • Public declaration of charges.
    • Acquiring new equipment or starting a new procedure or operation (as per Punjab Medical Council).
      The advertisement in the press should be in black and white, and < 15 x 10 cm in size. It should not carry photograph of the doctor/building/equipment/procedure (as per Punjab Medical Council).
  1. Patent and copyrights:He may patent surgical instruments, appliances, procedures and medicine. However, it is unethical, if the benefits of such patents are not made available in situations where the interest of large population is involved.
  2. He should not run an open shop for dispensing of drugs and appliances prescribed by other physicians.
  3. Rebates and commission (dichotomy/fee splitting/ ‘cut practice’): He should not give or receive any gift or commission in consideration of referring, recommending or procuring of patient for medical, surgical or other treatment, or for getting specimen or material for diagnostic purposes.
  4. Secret remedies: He should not prescribe or dispense secret remedial agents of which he does not know the composition.
  5. Human rights: He should not aid or abet torture or be a party to either infliction of psychological or physical trauma.
  6. Euthanasia: He should not practice euthanasia.
  7. Pharmaceutical and allied health sector industry: A medical practitioner should not receive any gift, cash or monetary grants, travel facility or accept any hospitality, like hotel accommodation from any pharmaceutical industry for vacation or for attending conferences, seminars, workshops or CME programme as a delegate.
Recently, the MCI has fixed the quantum of punishment: doctor taking bribe (gifts, cash or travel facility) worth  1000-5000 will receive a warning; taking ` 5000-10000: suspension from the SMC for 3 months, taking  10000-50,000: suspension of 6 months, and bribes ≥  50,000: suspension for 1 year.
 
Professional Misconduct (Infamous Conduct)
Definition: Any conduct of the doctor which might reasonably be regarded as disgraceful or dishonorable as judged by professional men of good repute and competence. It involves abuse of professional position.
The following acts of commission or omission on the part of a physician constitutes professional mis­conduct:
  1. Any unethical practice as outlined above.
  2. If he does not maintain the medical records of his indoor patients for a period of 3 years and refuses to provide the same within 72 h when the patient requests for it.
  3. If he does not display the registration number accorded to him by the SMC in his clinic, prescriptions and certificates issued by him.
  4. Physician posted in rural area is found absent on more than two occasions during inspection by the Head of the District Health Authority or the Chairman, Zila Parishad.
  5. Physician posted in a medical college as teaching faculty or otherwise is found absent on more than two occasions; the same is construed as misconduct, if it is certified by the Principal/Medical Superintendent.
  6. Providing falsified and misleading information to the MCI via Form A. The form is filled by the doctor when he/she joins a medical college.
Further, he should not:
  1. Commit adultery or misbehave with a patient.
  2. Be drunk and disorderly so as to interfere with proper practice of medicine.
  3. Be convicted by court of law for offences involving moral turpitude/criminal acts.
  4. Do sex determination tests with the intent to terminate the life of a female fetus.
  5. Issue false, misleading or improper certificates for subsequent use in the courts or for administrative purposes.
  6. Violate the provisions of Drugs and Cosmetics Act. He should not:
    • Sell Schedule ‘H’ and ‘L’ drugs and poisons to the public, except to his patient.
    • Prescribe steroids/psychotropic drugs when there is no medical indication.
  7. Supply or sell addiction forming drugs to a patient other than medical grounds.
  8. Give cover, i.e. assist someone who has no medical qualification to attend, treat or perform an operation, in cases requiring professional discretion or skill.
  9. Perform an illegal abortion/operation for which there is no medical, surgical or psychological indication.13
  10. Issue certificates of efficiency in modern medicine to unqualified or non-medical person.
  11. Disclose professional secrets.
  12. Refuse on religious grounds sterilization, birth control, circumcision and medical termination of pregnancy when it is indicated.
  13. Publish photographs/case reports of his patients without their consent in any medical or other journal or social media in a manner by which their identity could be made out.
  14. Use touts or agents to entice patients.
  15. Claim to be specialist when he has no special qualification in that branch.
  16. Undertake in-vitro fertilization or artificial insemination without the informed consent of the female patient and her spouse as well as the donor.
  17. Do clinical drug trials or other research involving patients or volunteers not abiding by the guidelines of ICMR.
  18. Advertise
    1. Contribute to the lay press articles and give interviews regarding diseases and treatments which may have the effect of advertising himself. He can write to the lay press under his own name on matters of public health, hygiene or deliver public lectures, give talks on the radio/FM/TV/internet for the same purpose.
    2. Use an unusually large signboard and write on it anything other than his name, qualifications, title, name of his speciality and registration number.
    3. Affix a signboard on a chemist's shop or in places where he does not reside or work.
    4. Give his name, address and speciality in the yellow pages of the telephone directory in bold letters.
The instances of offences and professional misconduct which are given above do not constitute a complete list of the infamous acts which calls for disciplinary action. Circumstances may arise from time to time in relation to which there may occur questions of professional misconduct which do not come within any of these categories.
Important offences can be described as 6 As12
  1. Association with unqualified persons
  2. Advertising
  3. Abortion (criminal)
  4. Adultery
  5. Addiction
  6. Alcohol
 
Erasure of Name
The name of the doctor is removed from the SMC register:
  • After the death of registered medical practitioner.
  • When entries of the medical practitioner are erroneous or fraudulent.
  • In case of professional misconduct which is known as penal erasure. When the name is permanently removed, it is termed as professional death sentence.13
  • When the registered medical practitioner is not traceable at the address recorded with the council.
 
Rights and Privileges of Registered Medical Practitioners
  1. Right to choose his patient—he may refuse any patient without reason, but he should not refuse emergency treatment required by the patient.
  2. Right to use title and description of the qualification to his name.
  3. Right to practice medicine.
  4. Right to dispense medicine to his patient.
  5. Right to possess and supply dangerous drugs to his patients.
  6. Right to give evidence in the court of law, as an expert witness.
  7. Right to issue medical certificates and medico-legal reports.
  8. Right to recovery of fees—if the patient does not pay the justified fees, help of court can be taken.
  9. Right for appointment in public and local hospitals.
  10. Right to be exempted from acting as a juror in course of holding an inquest (not applicable in India).
 
Red Cross Emblem
Red Cross is an emblem which is used only by those belonging to the Red Cross Movement and Army Medical Services involved in humanitarian work, mainly at times of armed conflicts and natural disasters, and it is not an emblem of medical professionals.
As specified by the Geneva Conventions, the emblem can be used only by the following:
  • Facilities for the care of injured and sick armed forces members
  • Armed forces medical personnel and equipment
  • Military chaplains
  • International Red Cross Organizations14
The use of the emblem by Government medical institutions, like hospitals, clinics and blood banks, doctors, private nursing homes and also on ambulance vehicles is equivalent to abuse, and is punishable with a fine of ₹ 500 and forfeiture of the goods or vehicles on which the emblem has been used.14
 
Privileges and Rights of Patients
  1. Access to health care facilities and emergency services regardless of age, sex, religion, social or economic status.
  2. Choice: To choose his own doctor freely.
  3. Continuity: To receive continuous care for his illness from doctor/institution.
  4. Comfort: To be treated in comfort during illness and follow-up.
  5. Complaint: Right to complain and redressal of grievances.
  6. Confidentiality: All information about his illness should be kept confidential.
  7. Dignity: To be treated with care, compassion, respect without any discrimination.
  8. Information: Should receive full information about his diagnosis, investigations, treatment plans, alternative therapy, procedures, diagnosis, compli­cations and side-effects.
  9. Privacy: To be treated in privacy.
  10. Refusal: Can refuse any specific or all measures.
  11. Records: Can have access to his records and demand summary or other details.
 
 
Duties of a patient
  1. He should furnish the doctor with complete information about the facts and circumstances of his illness.
  2. He should strictly follow the instructions of the doctor as regards diet, medicine and lifestyle.
  3. He should pay a reasonable fee to the doctor.
 
Types of Physician-Patient Relationship
It is of two types:
  1. Therapeutic relationship: A doctor is free to accept or refuse to treat a patient, subject to constraint of his work, except in emergencies. He may refuse to treat the patient in following circumstances:
    1. Beyond his practicing hours.
    2. Not belonging to his speciality.
    3. Doctor or any other family member is ill.
    4. Doctor having important social function in family.
    5. Illness beyond the competence and qualification of the doctor or beyond the facilities available in his setup.
    6. Doctor is having alcohol.
    7. Patient is malingering.
    8. Patient has been defaulting in payment.
    9. Patient or his relatives are abusive/uncooperative.
    10. Patient refuses to give consent.
    11. Patient demanding specific drugs, like amphe­tamine, steroids, etc.
    12. Patient rejecting low-cost remedies in favor of high cost alternatives.
    13. At night, on grounds of security, if patient is not brought to him.
    14. An unaccompanied minor or female patient.
    15. When doctor remains engaged with an emergency or more serious case.
    16. Any new patient, if he is not the only doctor available.
  2. Formal relationship: It pertains to the situation where the third party has referred the person/patient for impartial medical examination; e.g.
    1. Pre-employment.
    2. Insurance policy.
    3. Yearly medical checkups.
    4. Cases of rape or victims of crimes.
    5. Intimate body searches and other medico-legal cases.
    6. In certain psychiatric illnesses referred by court/police.
Doctor has to comply with the directive of the party demanding such examination.
 
Professional Negligence
Definition: The failure to exercise reasonable care and skill of an ordinary prudent medical practitioner in the circumstances; a breach of duty to act with care appropriate to the situation, which resulted in bodily injury (harm/loss) or death of the patient.
Negligence consists of two acts: Not doing something that a reasonable man, under the circumstances would do (act of omission); or doing something which a reasonable prudent man under the circumstances would not do (act of commission).
According to Black's Law Dictionary, medical negligence requires that the plaintiff establish the following (4 Ds):
  1. Existence of the physician's duty of care to the plaintiff, based on the existence of the physician-patient relationship.15
  2. Applicable standard of care and its violation (dereliction of duty), i.e. a breach in the duty caused by the defendant's negligent act or omission.
  3. Damage (a compensable injury), i.e. pain and suffering, disability and disfigurement, past and future medical bills, lost wages, wrongful death, etc.
  4. Causal connection between the violation of care and the harm complained of (direct causation), i.e. a direct link between the defendant's negligent act or omission and an injury suffered by the plaintiff.
In a lawsuit for malpractice or negligence (civil), the ‘patient’ is known as the plaintiff and the ‘physician’ becomes the defendant.15 Malpractice requires the demonstration of negligence or substandard practice that caused of harm. To successfully sue a physician for malpractice, the plaintiff must prove damage has been caused by the doctor's conduct (Flow chart 1.3).
zoom view
Flow chart 1.3: Basic principle of negligence (example)
  • Tort: A wrong or harm other than breach of contract; breach of a noncontractual duty towards another person which caused harm or loss. The same action may be both a tort, for which a person may seek compensation, and a crime, punishable by the state.
  • Degree of care: The level of caution, prudence or forethought legally required to avoid causing harm or loss to another person. In determining liability, a person may be required to exercise degrees of care variously described as ‘ordinary’, ‘due’, ‘reasonable’, ‘great’, or ‘utmost’.
  • Gross negligence: Negligence beyond the ordinary; a reckless or wanton disregard of the duty of care toward others.
  • Liability: An actual or potential legal obligation, duty or responsibility to another person; the obligation to compensate, in whole or in part, a person harmed by one's acts or omissions.
  • Chain of causation: In claims in tort, or prosecutions in criminal law, the causal relationship between the defendant's wrong doing and the victim's loss or injury should be obvious for successful outcome. For example, if A hits B over the head, and B sustains a concussion, A is responsible.
  • Damages: Money awarded in a suit or legal settlement as compensation for an injury or loss caused by a wrongful or negligent act or a breach of contract.
‘Damage’ should be distinguished from ‘damages’. Damage (injury or harm) to the patient may be physical, mental or financial. Damages are assessed by the court based on parameters, like loss of earning, medical and surgical costs, or reduction of quality of life.
Potential damages (financial compensation) in negligence suits fall into three categories:
  • Economic or the monetary costs of an injury (e.g. medical bills or loss of income)
  • Non-economic (e.g. pain and suffering, loss of ability to have sex)
  • Punitive or damages to punish a defendant for willful and wanton conduct.
 
Types (Diff. 1.2)
  1. Civil
  2. Criminal.
 
Civil Negligence
Question of civil negligence arises:
  1. When a patient, or in case of 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 doctor brings a civil suit for the realization of his fees from patient or his relatives, who refuse to pay the same, alleging professional negligence.
 
 
Civil negligence involves:
  • Such act on the part of the treating physician which causes some suffering, harm or damage to the patient
  • Damage is such, which can be compensated by paying money
  • Does not come under the purview of CrPC and IPC
  • Does not demand legal punishment.
 
Criminal Negligence
  • Criminal negligence is more serious than civil negligence.
  • Practically limited to cases in which the patient has died.
  • Mostly associated with drunkenness or impaired efficiency due to the use of drugs by doctors.
  • Doctor shows gross incompetency and inattention in the selection and application of remedies, undue interference by him or criminal indifference to the patient's safety.
  • Sec. 304-A IPC deals with criminal negligence; `whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide is punished with imprisonment upto 2 years and with/without fine’.16,1716
    Differentiation 1.2   Civil and criminal negligence
    S.No.
    Feature
    Civil negligence
    Criminal negligence
    1.
    Offence
    No specific and clear violation of law
    Must have specifically violated a particular criminal law in question
    2.
    Negligence
    Simple absence of care and skill
    Gross negligence, inattention or lack of competence
    3.
    Conduct of physician
    Compared to a generally accepted simple standard of professional conduct
    Not compared to a single test
    4.
    Consent for act
    Good defense, cannot recover damages
    Not a defense, can be prosecuted
    5.
    Trial by
    Civil court
    Criminal court
    6.
    Evidence
    Strong evidence is sufficient
    Guilt should be proved beyond reasonable doubt
    7.
    Punishment
    Liable to pay damages
    Imprisonment, fine or both
    8.
    Contributory negligence
    Defense for doctor
    Not a defense
    9.
    Double jeopardy*
    Can be tried twice for crime
    Cannot be tried twice for the same crime
    10.
    Damage
    Repairable damage or harm to patient
    Irrepairable damage to the patient
    11.
    Dispute
    Between two parties in their individual capacities
    Between the state and the offending doctor
    12.
    Complainant
    Sufferer party is the complainant
    Public prosecutor on behalf of the state is the complainant
    * Double jeopardy is a procedural defense (in India, US, Canada, Mexico and Japan—a constitutional right) that forbids a defendant from being tried a second time for the same crime.
  • The concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For an act to amount to criminal negligence, the degree of negligence should be much higher, i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.
  • The Supreme Court has held that to prosecute a doctor for criminal negligence, it must be shown that the accused did something or failed to do something which in the given facts and circumstances no doctor in his ordinary senses and prudence would have done or failed to do. The expression ‘rash or negligent act’ as occurring in Sec. 304-A IPC has to be read as ‘grossly’.18
 
 
Examples of Medical Negligence
It is impossible to give a complete list of negligent situations in medical practice. However, some situations that frequently give rise to allegations of negligence are cited in Table 1.1.
A physician may be liable to both civil and criminal negligence by a single act, e.g. if he performs an unauthorized operation on a patient, he may be sued in civil court for damages and prosecuted in criminal court for assault.19
The police sometime register the cases of professional negligence deaths under Sec. 304 IPC which is non-bailable offence, whereas if it is registered under Sec. 304-A IPC, the offence is bailable. The basic difference is that in Sec. 304, the act is intentional, while in 304-A, the act is never done with the intention to cause death.
 
Burden of Proof
The accused (doctor) is innocent until proven guilty, and the prosecution must prove the case against him/her. The plaintiff (patient) bears the burden of proof and must convince the judge by a preponderance of the evidence that its case is more plausible.20
  • In civil cases, a preponderance of the evidence is at least 51%. It means that judges in a medical negligence case must be persuaded that the evidence presented by the plaintiff is more plausible as the proximate cause of the injury than any counterargument offered by the defendant.
  • In criminal cases, the prosecution must prove their case ‘beyond reasonable doubt’ akin to a 98% or 99% certainty.
 
Preventing Medical Litigation
Some ways/methods to minimize litigation are sited below:17
Table 1.1   Examples of medical negligence
General Errors
  • Inadequate medical records and failure to examine the patient himself/herself.
  • Failure to attend a patient with consequent damage.
  • Failure to admit to hospital when necessary.
  • Failure to obtain informed consent for any procedure.
  • Making a wrong diagnosis in the absence of skill and knowledge.
  • Administration of incorrect type/quantity of drugs, especially by injection.
  • Failure to immunize and perform sensitivity tests.
  • Failure to act on radiological or laboratory reports.
Medicine
  • Failure to diagnose myocardial infarcts and other medical conditions.
  • Failure to refer a patient to hospital or for specialist opinion.
  • Toxic results of drug administration.
Surgery
  • Delayed diagnosis of acute abdominal lesions.
  • Retention of instruments, tubes, towels, sponges and swabs in operation sites.
  • Operating on the wrong patient, wrong side of the body, wrong limb, digit or even organ.
  • Failed vasectomy, without warning of lack of total certainty of consequent sterility.
  • Diathermy burns.
Obstetrics and Gynecology
  • Unwanted pregnancy due to failed tubal ligation.
  • Complications of hysterectomy—ureteric ligation and vesico-vaginal fistulae.
  • Brain damage in the newborn due to hypoxia from prolonged labor.
  • Mismanagement of delivery, especially under the influence of alcohol/drug.
  • Performing abortion without indication (criminal abortion).
Orthopedics and Emergency Medicine
  • Missed fractures, especially of the scaphoid, skull, femoral neck and cervical spine.
  • Over-tight or prolonged use of plaster casts resulting in tissue and nerve damage.
  • Undiagnosed intracranial hemorrhage.
  • Missed foreign bodies in eyes and wounds, especially glass.
  • Inadequately treated hand injuries, particularly tendons.
Anesthesiology
  • Hypoxia resulting in brain damage.
  • Neurological damage from spinal or epidural injections.
  • Peripheral nerve damage from splinting during infusion.
  • Incompatible blood transfusion.
  • Incorrect or excessive use of anesthetic agents.
Dentistry
  • Nerve injuries affecting a patient's ability to taste or causing permanent numbness in the tongue.
  • Failures to take a patient's relevant medical history.
  • Failure to detect oral cancer, periodontal disease or other diseases.
  • Unnecessary extraction of multiple teeth.
  • Extraction of wrong teeth.
  • Complications arising from negligently completed crowns and bridges.
  • Complications from anesthesia.
18
  • Awareness of potential areas of litigation and medico-legal problems: Doctor should be aware of the risks involved in certain procedures and should have clear knowledge of the changes in legislation which might influence his practice.
  • Good ‘doctor-patient’ relationship: Sympathy, good rapport and taking keen interest in the patient's apprehensions and complaints are hallmarks in gaining the patient's confidence. A suspicious patient who has no faith in the physician is a potential litigant.
  • Appropriate training and maintenance of authorized protocol: Up-to-date and adequate training of medical and nursing staff is needed. It is dangerous to venture beyond one's capability and qualifications. Maintaining a time-tested, well accepted protocol is necessary. It is wise to seek a second opinion.
  • Maintaining standard medical service: Limited work load and adequate infrastructure are needed to maintain good quality service. Minimum standard for nursing homes or hospitals, whether public or private, must be maintained.
  • Proper counseling and informed consent: Counseling and informed consent is mandatory before each medical/investigative/operative procedure.
  • Proper investigation: Any non-invasive/invasive procedures should be done, provided the risks and benefits are duly informed, and written consent has been taken.
  • Adequate supervision and timely referral: Adequate supervision by a well organized graded system is recommended. Early detection of complications by resident doctors and timely notification of the consultant, especially in emergency cases, may prevent mishaps.
  • Surgical intervention: Surgical procedures should always be performed in places where there is sufficient equipment and qualified staff. Junior doctors should be trained well and supervised in surgical care of the patient.
  • Meticulous record keeping: Often proper record keeping can prove the doctor innocent in the court. However, fabrication of records after any mishap is dangerous.
  • Morbidity and mortality audits: Discussions, analysis and constructive criticism of errors and omissions help in improving and maintaining standard of patient care.
  • Medical indemnity insurance: The doctor must cover himself with indemnity insurance.
  • Medical defense procedure: Efficient defense lawyer is important to defend one against a malpractice and negligence suit. The lawyer must be aware of the expected standard of patient care.
 
Defenses Against Negligence
In case of alleged negligence, following may be helpful for defense:
  • No duty owed to patient, i.e. no doctor-patient relationship was established.
  • Duty discharged according to prevailing standards.
  • Informed consent for the act: The patient was duly informed of the consequences.
  • Patient was guilty of contributory negligence.
  • Therapeutic misadventure.
  • Medical maloccurrence.
  • Error of judgment. The court has held that the error of judgment is not negligence. If, for e.g. one of the risks inherent in an operation takes place or some complication ensues which lessens the benefit that was hoped for, he makes an error of judgment. Moreover, doctor is not responsible if patient does not respond to the treatment.
  • Mistake of fact is a situation where a person not intending to do unlawful act, does so because of wrong conclusion or understanding of fact. The guilty mind was never there while doing the act. It can be a factor in reducing civil liability but not criminal liability.
  • Res judicata means ‘the things have been decided’. According to this principle, once the case is completed between two parties, it cannot be tried again between the same parties. Suppose a patient sues a hospital for any malpractice and the things are decided, he cannot subsequently sue the doctor again separately for the same negligence.
  • Limitation: The case against the doctor should be filed within 2 years from the date of alleged negligence.
No fee was charged for the treatment cannot be a defense in cases of negligence
Volenti non fit injuria (Latin, ‘to a willing person, injury is not done’) is a defense to an action in negligence. If a plaintiff (patient), with full knowledge, voluntarily consents the risk of injury, he will not recover any damages. The defendant (doctor) needs to prove not only that the plaintiff accepted the risk of injury but also accepted that if injury should happen, the plaintiff would accept the legal risk.19
 
Doctrine of Res ipsa loquitur
  • Generally, professional negligence of a doctor must be proved in the court by expert evidence of another physician.
  • The patient need not prove negligence in case where the rule of res ipsa loquitur applies, which means ‘the thing or fact speaks for itself.’21
  • Applies to both civil and criminal negligence.
  • Error is so self-evident that the patient's lawyer need not prove the doctor's guilt with medical evidence. The doctor has to prove his innocence.22
  • Rule is applied when the following three conditions are satisfied:
    1. In the absence of negligence, the injury would not have occurred, i.e. its occurrence ordinarily bespeaks negligence.
    2. Doctor had exclusive control over the injury producing instrument/treatment.
    3. Patient was not guilty of contributory negligence, i.e. injury was not the result of his own voluntary act or neglect.
Examples
  1. Blood transfusion misadventure (e.g. infected blood, blood group mismatch).
  2. Failure to give tetanus toxoid vaccine in cases of injury.
  3. Prescribing an overdose of medicine producing ill effects.
  4. Wrong-site surgery (surgery on the wrong person, wrong organ or limb, or wrong vertebral level), or wrong-procedure.
  5. Leaving a pair of scissors in abdomen.23
  6. Failure to remove swabs during operation, causing complications/death.
  7. Loss of use of hand due to prolonged splinting.
In such situations, the breach of duty is obvious, so the strategy of the defense generally must be to show that the patient was not harmed by the breach.
Gossypiboma (Latin gossipium: cotton, Kiswahili boma: place of concealment) or textiloma denotes complications resulting from foreign materials accidentally left inside a patient's body. The list of implements includes sponges (most common), swabs, towels, needles, instruments, catheters, metal clips, contraceptive coils, and retractors. The most common sites these incidents occur are operating rooms, labor and delivery rooms, ambulatory surgery centers or labs where invasive procedures such as catheters or colonoscopies take place.
 
Calculated Risk Doctrine
  • The doctrine is that, res ipsa loquitur should not be applied when the injury complained is of type that may occur even though reasonable care has been taken.
  • It is an important defense to any doctor.
  • Doctor has to produce evidence/statistics that the accepted method of treatment he employed had unavoidable risks.
  • For example, when a patient undergoing coronary bypass dies during the surgery, it becomes a case of professional accident as there is already an inherent risk of 2–5% associated with it.
 
Doctrine of Common Knowledge
  • It is based on the assumption that the issue of negligence in the particular case is not related to specialized knowledge or technical matters of the medical profession, but an act involving application of common knowledge.
  • Experts may not provide evidence regarding matters of ‘common knowledge’.
  • It is a variant of res ipsa loquitur.24
  • Here, the patient must prove the act of commission or omission, but he need not produce evidence to establish the standard of care.
 
Doctrine of Avoidable Consequence Rule
  • Once plaintiff (patient) has been injured, he must take reasonable steps to lessen the consequences of his original injury. A defendant (accused) will not be liable of any further injury that the plaintiff could have reasonably avoided.
  • The doctrine is different from contributory negligence, which is unreasonable conduct by plaintiff. It occurs before or simultaneously with the wrong committed by the defendant.25
  • The doctrine refers to unreasonable conduct by the plaintiff after the defendant has wronged the plaintiff. The amount of recovery is reduced.
  • Thus, if the plaintiff, after injury, unreasonably refuses to accept medical attention for a foot injury and as a result ultimately suffers amputation of the foot that otherwise would have healed, then the avoidable consequences rule would deny recovery for loss of foot but would not affect other damages.
The eggshell skull rule (thin-skull rule) is a legal doctrine used in both civil and criminal law that holds an individual liable for all consequences resulting from their activities leading to an injury to another person, even if the victim suffers unusual damages due to a pre-existing vulnerability or medical condition.20
 
Novus Actus Interveniens(Unrelated Intervening Action)
  • If a doctor is negligent, which results in deviation from the logical sequence of events, then the responsibility for the subsequent disability or death may pass from original incident to the negligent act of the doctor.
  • A novus actus is something which `breaks the chain of causation’.
  • For a plea of novus actus interveniens, an element of negligence is essential.
  • It usually applies to cases of accidents and assaults, like leaving a swab or instrument in the abdomen after laparotomy.
  • Plea is rarely accepted by the courts.
 
Contributory Negligence
Definition: Any unreasonable conduct, or absence of ordinary care on part of the patient or his attendant, which combined with doctor's negligence contributed to the injury complained of, as a direct cause and without which the injury would not have occurred.26,27
  • Good defense (called as ‘affirmative defense’) for the doctor in civil cases, but not in criminal cases.28
  • Doctor has to prove patient's negligence. But, doctor is expected to foresee that the patient may harm himself and to warn accordingly.
  • For example, patient did not give proper history, failure to follow doctor's instructions regarding drugs, tests and diet, or leaving the hospital against doctor's advice.
  • Damages awarded by the court may be reduced.
Composite negligence: Injury is caused to the person without any negligence on his part, but as a result of the combined effect of the negligence of some other persons (two or more). In such a case, each wrong doer is jointly and severally liable to the injured for payment of the entire damages, and the injured person has the choice of proceeding against all or any of them.
 
Corporate Negligence
Definition: It is the failure of those in hospital administration/management who are responsible for providing the treatment, accommodation and facilities necessary to carry out the purpose of the institution, to follow the established standard of conduct.
It occurs when the hospital:
  • Provides defective equipment or drugs.
  • Selects or retains incompetent employees including doctors.
  • Fails in some other manner to meet the accepted standard of care, and such failure results in injury to a patient to whom the hospital owes a duty.
 
Products Liability
Definition: It refers to the physical agent that caused the injury or death of the patient during treatment.
  • The plaintiff must prove that:
    1. Manufacturer departed from standards of due care, with respect to design, manufacture, assembly, packaging, failure to test and inspect for defects or failure to warn or give adequate instructions.
    2. Defect was the proximate cause of injury/death.
    If it is proved, the manufacturer becomes responsible for injury or death.
  • The burden of proving the safety and effectiveness of a new drug/device/instrument lies with the manufacturer.
 
Medical Maloccurrence
  • Medical maloccurrence is a legal term which defines a less than ideal outcome that is unrelated to the quality of medical care delivered by the health care team. This includes:
    • medical and surgical complications that can be anticipated, and represent unavoidable risks of appropriate medical care.
    • complications that arise unpredictably and are unavoidable.
    • complications that arise as a result of decisions made by patient and doctor with fully informed consent but appear, in retrospect, to have been a less appropriate choice.
  • Maloccurrence is often unrelated to the reasonable risks of quality of care that was provided.
  • In some cases, in spite of good medical attention and care, an individual fails to respond properly.
  • For example, idiosyncratic response to drugs in some patients or damage to recurrent laryngeal nerve during thyroidectomy leading to vocal cord paralysis. Rupture of the posterior capsule is a well-known complication of cataract surgery. The surgeon is not necessarily negligent if this occurs during the procedure.
 
Therapeutic Misadventure/Hazard
Definition: It is a case in which an individual has been injured or had died due to some unintentional/inadvertent act by doctor or his agent or hospital (somewhat similar to medical maloccurrence).21
  • The injury or an adverse event is caused by medical management rather than by an underlying disease.
  • It includes medication errors, medical and surgical errors, surgical complications, iatrogenic or nosocomial infections, or postoperative complications.
  • Such mishap does not provide ground for negligence, e.g.
    1. Hypersensitivity reactions caused by penicillin, tetracycline or aspirin.
    2. Radiological procedures for diagnostic purposes, e.g. poisoning by barium enema, traumatic rupture of rectum or chemical peritonitis during barium enema.
    3. Thyroid cancer with I131 therapy.
    4. Fatal complications from hemolytic reactions with blood transfusion.
    5. Prolonged use of diethylstilbestrol, a synthetic form of estrogen, may cause breast cancer.
Misadventure is mischance, accident or disaster.
It is of three types:
i. Therapeutic: when treatment is being given.
ii. Diagnostic: when diagnosis is the only objective at that time, e.g. injection of radiopaque dye in radiological investigation, bronchoscopy and angiography.
iii. Experimental: where patient has agreed to serve as a subject in an experimental study (drug/operative procedure).
 
Vicarious Liability/Respondeat Superior
Definition: An employer is responsible not only for his own negligent act, but also for the negligent act of his employees by the principle of ‘respondeat superior’ (Latin, ‘let the master answer’), if three conditions are satisfied:
  1. There must be an employer-employee relationship
  2. The employee's conduct must occur within the scope of his employment
  3. Incident must occur while on the job.
  • It also called the ‘Master-Servant Rule’.
  • In medical practice, usually, the principal doctor becomes responsible for any negligence of his assistants (both medical and para-medical). Both may be sued by the patient, even though the principal has no part in the negligent act.
  • A doctor may be associated temporarily with another doctor with the establishment of an employee-employer relationship between them. Thus, if one surgeon assists another in the operating room for a fee, the assistant is considered as an employee of the principal surgeon.
  • When two doctors practice as partners, each is liable for negligence of the other, even though one may have no part in the negligent act.
  • If a swab, sponge or instrument is left in the patient's body after the operation, the surgeon is liable for damage. A surgeon is not liable for the negligence of anesthetist, and the anesthetist is not liable for the negligence of the operating surgeon.
  • `Borrowed servant doctrine’: An employee may serve more than one employer, e.g. the nurse employed by a hospital to assist in operations will be the ‘borrowed servant’ of the operating surgeon during the operation, and the servant of the hospital for all other purposes.
  • Physicians and surgeons are not responsible for the negligent acts of competent nurse or other hospital personnel, unless such acts are carried out under their direct supervision and control.
  • A hospital, as an employer, is responsible for negligence of its employees who are acting under its supervision and control.
  • Hospital management cannot be held responsible for the negligent acts of members of the senior medical staff in the treatment of patients, if it can be proved that the management exercised due care and skill, in selecting properly qualified and experienced staff.
  • Hospital management is 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 direct supervision and control.29
  • Both the employer and employee are sued by the patient, because the employee may lack funds for paying the damages. Usually, liability will be fixed upon those actually at fault and those whose control over the negligence is demonstrable.
  • To avoid vicarious liability, an employer must demonstrate either that the employee was not negligent or the employee was reasonably careful or that the employee had gone on a ‘detour’, wherein the employee was acting in his own right, rather than on the employer's business.
In a case, Mr. Y was referred by the surgeon for preoperative assessment to a cardiologist who declared him fit for surgery. He developed cardiorespiratory arrest during surgery and died. The court observed that the cardiologist, in preoperative check, found BP 150/100 mmHg and ST changes in anterolateral lead in ECG. The anesthetist was also duty bound to assess the patient's condition for anesthesia. The court found the surgeon vicariously liable in selecting the cardiologist and anesthetist of his choice. The sharing of the liability of the surgeon was 30%, cardiologist 60% and anesthetist 10% of the total compensation granted by the court. The hospital was acquitted.22
 
Consent
Definition: Consent (Latin consentirez: ‘to feel or sense with’) means voluntary agreement, compliance or permission.
As per the Sec. 13 of the Indian Contract Act, 1872: `two or more persons are said to consent when they agree upon the same thing in the same sense (meeting of the minds).’
 
Types (Flow chart 1.4)
Broadly, consent is of two types:
  1. Implied: When the patient presents himself at the doctor's clinic or outpatient, it is held to imply that he is agreeable to be examined. This does not imply to procedures more complex than inspection, palpation, percussion and auscultation. For other examinations, like rectal and vaginal, and withdrawal of blood for diagnostic purposes, expressed permission should be obtained.
  2. Expressed: Specifically stated by the patient in distinct and explicit language. It can be:
    1. Oral/verbal consent is obtained for relatively minor examinations or therapeutic procedures, preferably in presence of disinterested party, like patient's attendant or nurse.
    2. Written consent is to be obtained for:
      • – All major diagnostic procedures
      • – General anesthesia
      • – Operations.
 
Doctrine of Informed Consent30
This doctrine implies an understanding by the patient of:
  1. His/her condition or nature of illness
  2. Purpose or necessity for further testing
  3. Natural course of condition and possible complications
  4. Nature of procedure or treatment proposed
  5. Risks and benefits of treatment or procedure
    zoom view
    Flow chart 1.4: Types of consent
  6. Risks and benefits of alternative treatment or procedure
  7. Prognosis in the absence of intervention
  8. Duration and approximate cost of treatment
  9. Expected outcome and follow-up.
  • The information provided to patients should be simple, easy to understand language and list any possible major complications to enable the patient to determine whether to undergo or decline a procedure (informed refusal) (Box 1.1).
  • There is no need to explain remote or theoretical risks involved which may frighten or confuse the patient and result in refusal to take treatment.
  • There are no clear parameters laid down regarding the quantum of information to be given for informed consent. Therefore, it is reasonable information which a doctor deems fit considering best practices.
  • The standard to which physicians are held in negligence suits is that of a ‘reasonable physician’ dealing with a ‘reasonable patient.’
 
Exceptions to Informed Consent
  • Emergencies
  • Medical examination requested by a police officer of an arrested accused under Sec. 53 (1) CrPC
  • Therapeutic privilege
  • Therapeutic waiver
  • Medico-legal postmortems (Sec. 174 CrPC)
  • Psychiatric examination or treatment by court order
  • Use of placebos
  • Prisoners

    Box 1.1 :  Disclosure of information during informed consent

    Name of the procedure: PCNL*
    Benefits: Removal of stone, amelioration of symptoms like pain, vomiting and blood in urine, small incision, shorter hospital stay, faster recovery.
    Risks and undesirable consequences: Infection and bleeding, retained stone, recurrence of stone, failure to remove the stone, need of ESWL,* injury to surrounding organs, gut and blood vessels, risk of anesthesia.
    Alternatives
    1. ESWL: May need multiple sessions, failure to adequately clear stone, pain and discomfort, blocked ureter, need for ancillary procedures
    2. Open surgery: Large incision, severe bleeding, infection, risk of anesthesia, prolonged hospital stay, longer recovery.
    * Percutaneous nephrolithotomy (PCNL) is a surgical procedure to remove stones from the kidney by a small puncture wound through the skin. Extracorporeal shock wave lithotripsy (ESWL) uses sound waves or shock waves to break stones into small fragments that can pass spontaneously in urine.
  • 23Person suffering from disease under ‘notified’ category (to notify the authorities only)
  • Treatment of notifiable diseases for greater community interest.
 
Emergency cases: If a patient is unconscious and there is an imminent danger to the life of the patient and there is no designated surrogate or the surrogate is unavailable, then the law presumes that consent has been deemed to be given (implied consent, Sec. 92 IPC). For implied consent to apply, the injured must require emergency treatment to save life or limb and the treatment rendered must be so limited. Once the emer­gency treatment is no longer required, the and operative procedures wheredoctrine of im­plied consent does not govern.
Therapeutic privilege: In case of full disclosure (e.g. presence of malignancy or unavoidable total results) in patients prone for anxiety, the doctor should use therapeutic privilege in the interest of the patient. However, he should disclose full information to the competent relative of the patient.
Therapeutic waiver:A competent person who is aware of being entitled to informed consent may give up his right by waiving it.
Placebo: The doctor may use placebos in certain self-limiting conditions or in patients with high psychological overlay or in those who insist for some particular medication (e.g., addiction forming drugs). Informed consent may be withheld since there are high chances of benefit to the patient with negligible risk.
Prisoners: Prisoners and persons released on bail can be treated without their consent in the interest of the society.
 
Consenting Ages for Treatment
  • The age of consent for medical examination and treatment is legally accepted as > 12 years.31
  • For any invasive and diagnostic procedures, general anesthesia and surgical operations, age of consent is > 18 years.
  • For a child < 12 years of age, or a patient of unsound mind, his/her guardian or person in whose custody he/she is, can give consent. Nonetheless, individuals with mental illness and intellectual disabilities should also be informed of the examination procedure or treatment.
  • For medico-legal examination, the consent should be signed by the person if he/she is > 12 years of age. Consent must be taken from the guardian/parent, if the individual is < 12 years.
  • In accordance to the Indian Contract Act, a person is generally competent to contract (i) if he has attained the age majority (18 years in India), (ii) is of sound mind, and (iii) is not disqualified by any law to which he is subject to.
  • Impairments to reasoning and judgment which may make it impossible for someone to give informed consent include basic intellectual or emotional immaturity, high levels of stress such as PTSD, severe mental retardation or illness, senility, delirious intoxication, severe sleep deprivation, Alzheimer's disease and coma.
 
Reasons for Obtaining Consent
  1. To examine, treat or operate upon a patient without consent is assault (battery) in law, even if it is beneficial and done in good faith.32
  2. If a doctor fails to give the required information to the patient before taking consent to a particular operation/treatment, he may be charged for negligence.
  3. Not taking consent is considered as deficiency in medical services under the section 2(1) of the Consumer Protection Act.
 
Rules of Consent
  1. Consent should be free, voluntary, clear, intelligent, informed, direct and personal. There should be no undue influence, fraud, misrepresentation of facts, compulsion, coercion or other consequences.
  2. Informed consent is legally not required to be in writing, but provides evidence that consent was in fact obtained, if necessity arises.
    • It should be in a proper form and suitably drafted for the circumstances. The more specific the consent, the less likely it will be construed against the doctor or hospital in the court.
    • The written consent should be witnessed by another person, present at the signing to prevent any allegation that the consent was forged or obtained under pressure. Hence, it has to be signed by the patient (unless minor, unconscious or insane wherein a legal guardian should sign), doctor and an independent witness.
  3. Any procedure beyond routine physical exami­nation, such as operation, blood transfusion or collection of blood requires expressed consent.
  4. The doctor should explain the object of examin­ation to the patient, and patient should be informed that the findings would be included in the report.
  5. Patient should be informed that he has right to refuse to submit to examination. If he refuses, he cannot be examined.24
  6. A person > 18 years of age can give valid consent to suffer any harm, which may result from an act not intended or not known to cause death or grievous hurt (Sec. 87 IPC).
  7. A person can give valid consent to suffer any harm which may result from an act not intended or not known to cause death, done in good faith and for his benefit (Sec. 88 IPC).
  8. A child < 12 years of age and an insane person cannot give valid consent to suffer any harm which may result from an act done in good faith and for his benefit. The consent of the parent or guardian should be taken (Sec. 89 IPC).33
    Loco parentis (Latin, ‘in place of a parent’): In an emergency involving children, when their parents or guardians are not available, consent is taken from the person-in-charge of the child, e.g. a school teacher can give consent for treating a child who becomes sick during a picnic away from home, or the consent of the principal of a residential school.
  9. The consent given by an insane or intoxicated person, who is unable to understand the nature and consequences of that to which he gives his consent is invalid (Sec. 90 IPC).
  10. Sec. 92 IPC deals with cases of emergency, e.g. head injury requiring urgent decompression.34 It states that any harm caused to a person in good faith, even without the person's consent, is not an offence, if the circumstances are such that it is impossible for that 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. In an emergency, the law implies consent.35
  11. Even in emergency, unless patient is unconscious, the consent offered by the parents of major (> 18 years) is void and amount to negligence.
  12. Nothing is said to done in good faith which is done without due care and attention (Sec. 52 IPC).
  13. Consent of the in-mates of the hostel is necessary, if they are > 12 years of age. Within 12 years, the principal or warden can give consent.
  14. In civil cases, examination should not be done without the consent of the person.
  15. In criminal cases, the victim cannot be examined without his/her consent. The court cannot force a person to get medically examined.
    • In rape cases, victim should not be examined without her written consent.
    • In medico-legal cases of pregnancy, delivery and abortion, the woman should not be examined without her consent.
  16. Under Sec. 53 (1)CrPC, an accused can be examined by a doctor by using reasonable force, if requested by a police officer (not below S.I.), if examination* may provide evidence to the commission of the offence.36
    Whenever an accused female is to be examined, the examination shall be made only by, or under the supervision of a female medical practitioner. Such an examination by a male doctor must not be carried out even in the presence of a female nurse [Sec. 53 (2) CrPC].
  17. Under Sec. 54 CrPC, an arrested person may be examined by a doctor at his request to detect evidence in his favor, a copy of the report is to be furnished by the doctor to the arrested person.
  18. Consent of one's spouse is not necessary for the treatment of other. Husband or wife has no right to refuse consent to any operation, which is required to safeguard the health of the partner.
  19. For contraceptive sterilization and artificial insemination, consent of both husband and wife should be obtained.
  20. Consent given for a diagnostic procedure cannot be considered as consent for therapeutic treatment. Consent given for a specific treatment/procedure is not valid for conducting some other treatment/procedure. The fact that the unauthorized additional surgery is beneficial to the patient, or that it would save considerable time and expense to the patient, or would relieve the patient from pain and suffering in future, are not grounds of defense in an action for negligence. The only exception to this rule is if the unauthorized procedure was done to save the life or preserve the health of the patient.
  21. There can be a common consent for:
    • Diagnostic and operative procedures where they are contemplated
    • Particular surgical procedure and an additional/ further procedure that may become necessary during the course of surgery.
  22. The law provides the consent in any procedure made compulsory by state, e.g. mass immunization.
  23. In case of consent for donation of organ after death, the will of the deceased is enough.
  24. In prenatal diagnostic procedures, informed written consent of pregnant woman is obtained and a copy of the consent is given to the woman.
    ____________
    * This includes examination of blood, bloodstains, semen, swabs in cases of sexual offences, sputum and sweat, hair samples and fingernail clippings using modern and scientific techniques including DNA profiling.25
  25. Pathological autopsy should not be carried out without the consent of next of kin of the deceased.37
  26. Medico-legal autopsy does not require any consent from the relatives of the deceased.
Consent is invalid if:
  • It is not an informed consent.
  • Given for committing a crime or an illegal act, such as criminal abortion.
  • Obtained by misrepresentation or fraud.
  • Given by one who had no legal capacity to give it, e.g. a minor or an insane person.
  • Substituted consent: If a person in need of treatment is incapable of giving informed consent, consent (proxy consent) must be obtained from next of kin. The order of succession is generally spouse, adult child, parent and sibling.
  • Blanket (open) consent: The consent taken at the time of admission, and practiced in most hospitals that cover almost everything a doctor might do to a patient without mentioning anything specific. It is of questionable legal validity.38
  • Presumed consent assumes that an individual agrees in principle to the said procedure; if not, he/she must withdraw his/her consent, i.e. ‘opt out’.
 
Medical Records
Medical records pertains to documents containing a chronological written account of the patient's medical history and complaints, physical findings, results of diagnostic tests, medications, therapeutic procedures and day-wise progress notes recorded by a medical practitioner.
  • It is a part of medical training and one must make a habit of keeping records, not only in the interest of medical science, but also for his own safety and interest.
  • It serves as a documentary evidence of the patient's illness, treatment and response to the treatment. This record may be used as evidence in malpractice suits, claims of the insurances and compensations in personal injury suits. The dictum is that ‘If it is not in the record—it did not occur’.
  • Records are the property of the hospital and the personal data contained in the medical record is considered confidential information and the property of the patient.
  • Original hospital record of the medico-legal case (MLC) including X-ray/CT/MRI films should not be handed over to the police. However, if the investigating officer requests, a photocopy of the record (bed-head-ticket) may be supplied and a receipt of the same must be obtained.
  • Medico-legal report (MLR) and postmortem report (PMR) belongs to the requestor, i.e. the police and the same is held by the doctor in fiduciary relationship.
  • If affected party is asking for a record, then attested photocopy of the MLR can be handed over to the patient or his/her relative and after the requisite fee has been paid by applicant.
  • Request for supply of copy of MLR or PMR under the RTI Act are not maintainable under Section 8(1) (e) & Section 8(1) (h). It should not be issued to third parties (including the accused) by the hospital authorities.
  • Safe custody of the patient's confidential records, whether kept in conventional manner or in a computer, is the responsibility of the doctor.
  • Patient's record cannot be used in clinics or conferences without the patient's consent.
  • Hospitals have the right to use the records without consent for evaluating the quality of care and statistical purposes.
  • X-ray films are the property of the hospital/doctor as part of the record, the patient is entitled for the skill and treatment, but copies of records and X-ray films may be given.
  • Under the Directorate General of Health Services guidelines published in ‘Hospital Manual’, the responsibility of hospital to keep medical records is upto 5 years for outpatient department, and for inpatient medical records (including case sheets of medico-legal cases) it is upto 10 years.
 
Malingering (Shamming)
Definition: It is a conscious planned feigning or pretence to having a disease in order to achieve a specific goal.39
 
Reasons
  1. By soldiers or policemen to evade their duties
  2. By prisoners to avoid hard work
  3. By businessmen to avoid business contracts
  4. By workmen to claim compensation
  5. By beggars to attract public sympathy
  6. By criminals to avoid legal responsibility.
Diseases feigned: Ophthalmia, neurasthenia, dyspepsia, aphasia, intestinal colic, sciatica, diabetes, vertigo, spitting of blood, epilepsy, ulcers, insanity, burns, paralysis of limbs, rheumatism, artificial bruise, lumbago, etc.40
  • Usually the signs and symptoms do not conform to any known disease.
  • 26Patients can distort or exaggerate their symptoms, but true simulation is very rare.
  • History of the case should be taken from the person himself and his relatives or friends, and any inconsistencies in this description of the symptoms are noted.
  • A complete examination is essential after removing the bandages, if any, and washing the part.
  • It can be diagnosed by keeping the patient under observation, and watching him without his knowledge.
 
Euthanasia (Mercy Killing)
Definition: Euthanasia (Greek, good death) denotes producing painless death of a person suffering from hopelessly incurable and painful disease.
Types: It can be of two types (Diff. 1.3)
  1. Active euthanasia
  2. Passive euthanasia
It can also be classified into:
  1. Voluntary euthanasia: Wherein the individual requests euthanasia, either during illness or before, if complete incapacitation is expected.
  2. Non-voluntary euthanasia: Where an individual is incapable of perception and feeling, and hence cannot decide or distinguish between life and death, such a person cannot give informed consent, e.g. when resuscitation is not expected after severe brain damage as in coma patients or severely defective infants.
  3. Involuntary euthanasia: Where an individual may distinguish between life and death, and any medical killing is involuntary, i.e. against the will of the person. It is ethically, morally and legally considered as murder. This is not to be confused with medical killing in cases of capital punishment.
 
Arguments against Euthanasia
  1. It is against medical ethics.
  2. Medical science is making rapid progress; a disease which is incurable today may became curable tomorrow.
  3. It would not only be for people who are ‘terminally ill’, but may be used to commit murder. It could be misused by doctors coming hand in glove with relatives.
  4. It can become a means of health care cost containment.
  5. It may become non-voluntary.
  6. It is a rejection of the importance and value of human life.
  7. It is a crime against society and equivalent to legalizing murder and suicide. It will encourage people to commit suicide.
 
Reasons for Euthanasia
  1. Unbearable pain: Patient should be allowed a dignified painless death, instead of prolonging the same through the torture of pain and disease.
  2. High cost of medical treatment: It may pose economic and psychological burden to the patient's relative.
  3. Right to commit suicide.
  4. Patient should not be forced to stay alive: Medical science too has its limitation and cannot cure all diseases.
  • Pediatric euthanasia: Euthanasia administered to seriously sick or deformed infants.
  • Geriatric euthanasia: Euthanasia administered to seriously sick, aged individuals.
  • Battlefield euthanasia: Euthanasia administered to severely wounded or handicapped individual.
  • Supreme Court has allowed passive euthanasia in patients with permanent vegetative state but rejected active euthanasia.41 The decision has to be taken to discontinue life support either by parents or spouse or other close relatives or in the absence of any of them—by a person or a body acting as a `next friend’. Recently, however, the government rejected the implementation of the ‘Medical Treatment of Terminally-ill Patients (Protection of Patients and Medical Practitioners) Bill, 2006’ because it is not in favor of ‘mercy killings’.
  • Physician-assisted suicide (PAS) is the physician prescribing a drug or other action to facilitate a patient taking his/her own life, with the committed action taken by the patient. The terms ‘PAS’ and ‘euthanasia’ are often used interchangeably.
  • Belgium, Netherlands, Luxembourg, Switzerland and the US states of Oregon, Washington, Montana, Vermont permit some forms of euthanasia.41
  • By far, most reported cases of euthanasia concern cancer patients.
  • Palliative care: The provision of reasonable medical and nursing procedures for the relief of physical pain, discomfort or emotional and psychological suffering as well as providing food and water in terminally ill patients.4227
Differentiation 1.3   Active and passive euthanasia41
S.No.
Feature
Active euthanasia
Passive euthanasia
1.
Definition
Positive merciful act, to end useless suffering or a meaningless existence
Discontinuing or not using extraordinary life-sustaining measures to prolong life
2.
Principle
It is an act of commission
It is an act of omission
3.
Procedure
Administration of lethal doses of opium/barbiturate/sodium thiopental and then a muscle relaxant
Allowing death by not resuscitating a terminally ill or incapacitated patient or defective newborn infant
4.
Characteristic feature
Using measures that would hasten death
Not using measures that would delay death
5.
Followed in
Netherlands and Belgium
India and in some states of the US (e.g. with holding tube-feeding)

MULTIPLE CHOICE QUESTIONS

 
1. Medical etiquette is related to: NEET 13
  1. Legal responsibilities of doctors
  2. Rules to be followed by doctors
  3. Courtesy observed between doctors
  4. Moral principles followed by doctors
2. Schedule that recognize medical qualifications awarded by institutions in India: AIIMS 11
  1. Schedule I
  2. Schedule II
  3. Schedule III Part I
  4. Schedule III Part II
3. Medical qualifications awarded by institutions outside India and recognized by MCI are registered in: AI 06
  1. First schedule of Indian Medical Council Act 1956
  2. Second schedule of Indian Medical Council Act 1956
  3. Part I of third schedule of Indian Medical Council Act 1956
  4. Part II of third schedule of Indian Medical Council Act 1956
4. Professional death sentence is given by: AFMC 11; NEET 14
  1. Central Health Ministry
  2. Medical Council of India
  3. Indian Medical Association
  4. State Medical Council
5. Appeal against penal eraser can be done in: WB 11
  1. State Medical Council
  2. Medical Council of India
  3. Central Health Ministry
  4. State Health Ministry
6. Prohibition of participation in torture by a doctor comes under:MP 10; NEET 15; COMEDK 15
  1. Declaration of Tokyo
  2. Declaration of Helsinki
  3. Declaration of Oslo
  4. Declaration of Geneva
7. Declaration of Helsinki is about: Odisha 11; NEET 14
  1. Organ transplantation
  2. Human experimentation
  3. Torture
  4. Physician's oath
8. Declaration of Oslo is related to which among the following: DNB 10
  1. Torture
  2. Capital Punishment
  3. Medical Termination of Pregnancy
  4. Human experimentation
9. As per MCI, minimum period for which a doctor should preserve his patient's record: JIPMER 13
  1. 2 years
  2. 3 years
  3. 4 years
  4. 5 years
10 . In the court of law, professional secrecy can be divulged under: MAHE 11
  1. Doctrine of Common Knowledge
  2. Privileged communications
  3. Res ipsa loquitor
  4. Therapeutic privilege
11. Privileged communication is between:AI 09
  1. Doctor-patient
  2. Doctor-medical council
  3. Doctor-court
  4. Doctor-police
12. Infamous conduct comprises of all, except: Delhi 11
  1. Adultery
  2. Advertising
  3. Procuring criminal abortion
  4. Examining a patient without consent
13. Professional death sentence is: TN 07
  1. Imprisonment for life
  2. Rigorous imprisonment
  3. Erasing of name from the medical register
  4. Death by hanging
1. C
2. A
3. B
4. D
5. C
6. A
7. B
8. C
9. B
10. B
11. C
12. D
13. C
2814. False statement regarding Red Cross sign: AI 10
  1. Can be used by Army medical services
  2. Punishable to use it without permission
  3. Used by members of Red Cross
  4. Can be used by doctors and ambulances
15. Plaintiff is a person who: NEET 13
  1. Files case in civil court
  2. Acts as defender
  3. Gives judgment
  4. Same as public prosecutor
16. If death of a patient occurs during surgery due to the negligence of the surgeon, then he can be charged under: COMEDK 07; DNB 09; NEET 14
  1. 299 IPC
  2. 300 IPC
  3. 304-A IPC
  4. 304-B IPC
17. Punishment under 304-A IPC: NEET 15
  1. 1 year
  2. 2 years
  3. 3 years
  4. 4 years
18. According to recent SC judgment, doctor can be charged for medical negligence under 304-A, only if: AIIMS 12
  1. He is from corporate hospital
  2. Negligence is from inadvertent error
  3. Simple negligence
  4. Gross negligence
19. Liability for wrong limb amputation can be considered under: BHU 12; NIMHANS 14
  1. Criminal negligence
  2. Civil negligence
  3. Both civil and criminal
  4. Contributory negligence
20. In civil negligence cases against the doctor, the onus of the proof lies with: AIIMS 11
  1. Doctor
  2. Patient
  3. First class judicial magistrate
  4. Police not below the rank of sub-inspector
21. Doctrine of res ipsa loquitur means: NEET 13,14
  1. Fact speaks for itself
  2. Medical maloccurrence
  3. Common knowledge doctrine
  4. Mandatory oral evidence
22. Burden to prove defense lies with the doctor in case of: UP 11
  1. Mens rea
  2. Res ipsa loquitor
  3. Res juidicata
  4. Respondeat superior
23. During an operation, if a pair of scissors is left in abdomen, the doctrine applicable is: JIPMER 10
  1. Res integra
  2. Res gestae
  3. Res ipsa loquitor
  4. Res judicata
24. Doctrine of Common Knowledge is a variant of: Odisha 11
  1. Medical maloccurance
  2. Novus actus interveniens
  3. Res ipsa loquitur
  4. Calculated risk doctrine
25. Contributory negligence is related with: DNB 08
  1. Eggshell skull rule
  2. Master-servant rule
  3. Avoidable consequence rule
  4. Common knowledge rule
26. Medical negligence in which the patient contributed to the injury complained of: DNB 09
  1. Civil negligence
  2. Corporate negligence
  3. Contributory negligence
  4. Criminal negligence
27. Contributory negligence is negligence due to: NEET 13
  1. Doctor only
  2. Patient only
  3. Both doctor and patient
  4. Hospital administrator and doctor
28. Contributory negligence is a defense in: NEET 13
  1. Civil negligence
  2. Criminal negligence
  3. Corporate negligence
  4. Composite negligence
29. Vicarious responsibility pertains to: Delhi 06; NIMHAS 14
  1. Patient's, contribution towards negligence
  2. Hospitals contribution towards patient's damage
  3. Responsibility for actions of a colleague
  4. Responsibility of senior for actions of junior
30. False about informed consent: AIIMS 07; AFMC 12
  1. Alternate procedures/treatment to be concealed from the patients
  2. Patient must be told about the risks
  3. Patient must be explained about the whole procedure
  4. Patient must be explained in the language he under­stands
31. A 13-year-old boy attends the surgery without an adult accompanying him. He has a sore throat. Legally, a general practitioner must: Karnataka 07
  1. Examine and prescribe as appropriate
  2. Refuse to see him unless a responsible adult is present
  3. Write to the parent asking them to come to the surgery
  4. Examine but not prescribe
14. D
15. A
16. C
17. B
18. D
19. C
20. B
21. A
22. B
23. C
24. C
25. C
26. C
27. C
28. A
29. D
30. A
31. A
29 32. Examining the patient without consent amounts to: Delhi 11
  1. Assault
  2. Unethical act
  3. Indecent act
  4. Negligence
33. Consent for examination in a psychiatric patient is given by: COMEDK 13
  1. Patient
  2. Doctor
  3. Guardian
  4. Not required
34. A doctor while examining the patient without consent in an emergency is protected under: MAHE 06; Maharashtra 10
  1. Sec. 87 IPC
  2. Sec. 89 IPC
  3. Sec. 90 IPC
  4. Sec. 92 IPC
35. A doctor has to do an urgent operation on an unconscious patient to save his life. But there are no relatives to take consent. He goes ahead without obtaining consent from anyone; he is using the principle of:
CMC (Vellore) 09
  1. Therapeutic privilege
  2. Doctrine of implied consent
  3. Therapeutic waiver
  4. Doctrine of informed consent
36. Under which section, police can ask the doctor to examine without the accused person's consent: NEET 14
  1. Sec 52 IPC
  2. Sec 53 CrPC
  3. Sec 54 CrPC
  4. Sec 92 IPC
37. Consent is required for: UP 11
  1. Mass immunization
  2. Medico-legal autopsy
  3. Pathological autopsy
  4. Treatment of unconscious patient
38. Blanket consent is consent taken: NEET 14
  1. When the patient comes to doctor for treatment
  2. Orally when given during any procedure
  3. Implied by gesture
  4. At the time of admission to do any surgery
39. A person voluntarily acting like having a disease is said to be: Kerala 09; jipmer 14
  1. Hypochondriac
  2. Masochist
  3. Gerontophilia
  4. Malingerer
40. 20-year-old female had abdominal pain previous week, USG and clinically normal. Again she presented with loss of vision, examination is normal. Diagnosis is:AIIMS 13
  1. Malingering
  2. Masochist
  3. Hypochondriac
  4. Anxiety disorder
41. True about euthanasia are all, except: PGI 14
  1. Passive euthanasia is legal in India
  2. Active euthanasia is allowed in the UK
  3. Physician assisted suicide is legal in some states of the US
  4. Active euthanasia is legal in Netherlands and Belgium
42. In terminal illness, care to provide painless shortening of life is termed as: AFMC 11
  1. Palliative care
  2. Passive euthanasia
  3. Physician-assisted suicide
  4. Active euthanasia
32. A
33. C
34. D
35. B
36. B
37. C
38. D
39. D
40. A
41. B
42. A