Hello all!
I am glad to be associated with the PathoIndia law blog. I have an MD (Medicine) from AIIMS, where I held the post of Additional Professor, which I left to join as Professor, later Dean, at NIHFW, Delhi. After retirement, I acquired LL.B. and LL.M. degrees and membership of Indian Law Institute and Supreme Court Bar Association. I joined the Bar in 2001.
I am here to mutually share and discuss various medico-legal problems, issues, knowledge, views and experiences with others. Please feel free to ask any questions or to post any comments etc. and I shall respond to them at the earliest. Early response from me will be facilitated if you let me know that you have posted a query by sending me a mail at mcgupta44@gmail.com
M C Gupta
17 March 2009
Sir,
ReplyDeleteAs you know yhere are many DMLT path labs in most of the states. Are there any rules to stop them? If yes, kindly let me know on drbharatsborole@rediffmail.com
And if possible kindly visit one blog on net ----------- www.illegaldmltlab.blogspot.com
can i join anothr medical college without relieving certificate frm first
ReplyDelete*QUESTION-- Can an MBBS doctor in government service perform an autopsy and
ReplyDeletegive an opinion about the cause of death?*
*ANSWER*—Yes. Not only can he do that, but he has to do that if the employer
asks him to do it.
M C Gupta
*Can an MBBS report on a medico-legal x-ray?*
ReplyDelete* *
*QUESTION-- Can an MBBS doctor report on medicolegal x rays?*
*ANSWER*—If a radiologist is not around and if he is asked by the employer
or the police or the court to give his opinion on an x-ray in a medico-legal
case, an MBBS doctor has 3 options, all legally valid:
1—He can give the opinion.
2—He can give the opinion along with a remark that he is not a radiologist
and his opinion is just a preliminary opinion and a radiologist’s opinion
should be obtained.
3—He can state that he does not feel competent to give the opinion and a
radiologist’s opinion should be obtained. (However, if, in spite of this,
the police or the court or the employer wants him to give an opinion, he
should not refuse but should add appropriate remarks.
M C Gupta
Endoscopy by an MBBS doctor?*
ReplyDelete*QUESTION--* Can MBBS doctors perform endoscopies?
ANSWER—The logical answer would be that anybody can legally practice only
that in which he has been trained or has a specific qualification. The MBBS
course curriculum does not include training in endoscopy. With no other
qualification except endoscopy, the MBBS doctor would find it very difficult
to defend himself if an allegation of practicing something in which he is
not competent is brought against him.
M C Gupta
QUESTION--* Can an MBBS doctor perform an MTP?
ReplyDeleteANSWER—
1—An MBBS doctor without a post-graduate qualification in gyn-obs or without
the necessary experience required as per the MTP Act, 1971, read with MTP
Rules, 2003, is not legally competent to perform an MTP.
2—The requirements as per Rule 4 of the MTP Rules, 2003, are as follows:
*“**4.** **Experience and training under clause (d) of Section 2:- *
For the purpose of clause (d) of section (2), a registered
medical practitioner shall have one or more of the following experience or
training in gynaecology and obstetrics, namely;
(a) In the case of a medical practitioner, who was registered
in a State Medical Register immediately before the commencement of the Act,
experience in the practice of gynaecology and obstetrics for a period of not
less than three years;
(b) In the case of a medical practitioner, who is registered in a
State Medical Register:-
(i) if he has completed six months of house surgency in
gynaecology and obstetrics; or
(ii) unless the following facilities are provided therein, if
he had experience at any hospital for a period of not less than one year in
the practice of obstetrics and gynaecology ; or
(c) if he has assisted a registered medical practitioner in the
performance of twenty-five cases of medical termination of pregnancy of
which at least five have been performed independently, in a hospital
established or maintained or a training institute approved for this purpose
by the government.
(i) This training would enable the Registered Medical Practitioner
(RMP) to do only 1st Trimester terminations (up to 12 weeks of gestation).
(ii) For terminations up to twenty weeks the experience or training
as prescribed under sub rules (a), (b) and (d) shall apply .
(d) In case of a medical practitioner who has been registered in a
State Medical Register and who holds a post-graduate degree or diploma in
gynaecology and obstetrics, the experience or training gained during the
course of such degree or diploma.”
M C Gupta
MD (Medicine), LL.M.
*Doctors face a lot of problems in doing autopsies. What can be done?*
ReplyDelete**
*QUESTION--** **Doctors, including those in forensic medicine departments,
have to perform autopsies in primitive conditions, such as: lighting; lack
of cooling / refrigerating facilities, leading to badly stinking bodies;
inadequate staff; lack of videography facilities so as to authenticate the
findings of autopsy, etc. The task is hard but is of great importance to
uphold the rule of law, justice and fair play. The** bureaucrats in the
health department do not listen to the problems of doctors. **What can they
do?*
* *
*ANSWER*—What they can do is to persuade their association, such as the
Forensic Doctors’ Association, to submit a proper representation, drafted
with legal help, addressed to the health directorate, praying for certain
remedial action within, say, 6-8 weeks, and, if no reply / action is
forthcoming, to file a PIL in the High Court. What I am saying here is
nothing new or exceptional. Even illiterate peons and daily wage workers
file writ petitions in the high court and win. The problems with doctors are
that: FIRSTLY, they think they are so highly educated that they can write an
excellent representation themselves; SECONDLY, they are so chicken hearted
that they are afraid the employer will punish them; THIRDLY, they are so
submissive that they don’t mind suffering because any protest would possibly
affect hospital services and cause inconvenience to public.
M C Gupta
MD (Medicine), LL.M.
*QUESTION--** Can an MBBS doctor report on medicolegal x rays?*
ReplyDelete*ANSWER*—If a radiologist is not around and if he is asked by the employer
or the police or the court to give his opinion on an x-ray in a medico-legal
case, an MBBS doctor has 3 options, all legally valid:
1—He can give the opinion.
2—He can give the opinion along with a remark that he is not a radiologist.
3—If he feels that he is not competent to give opinion (for example in
special cases like: dental x-ray; bone age determination etc.) the MLC
x-rays along with a forwarding letter and copy of injury report should be
sent through the police to the department of forensic medicine of the
nearest government medical college who will then send it to the concerned
department of that college. Once the report reaches back to the primary
doctor who prepared the injury report, he will finally prepare the report to
be submitted to the court mentioning whether the injury is simple/grievous
etc. depending on the opinion of the expert. In such a case if a doctor is
called by the court as medical expert witness, the routine practice is to
call not the radiological expert etc. but only the doctor who prepared the
injury report.
M C Gupta
MD (Medicine), LL.M
CONTD ...
ReplyDelete3—It is thus amply clear that as per law, the dentist concerned has to issue
the cause of death certificate.
4—If the dentist is adamant that he would not issue a cause of death
certificate under his signature, what should be done is this:
a—The dentist should be given a written order by the head of the institution
/ medical superintendent to issue a cause of death certificate within 24
hours.
b—If he does not do so, the following should be done:
i—Initiate disciplinary proceedings against him for dereliction of duty;
ii- Take away the dental beds from the department of dentistry and put them
under control of the department of surgery on the reasoning that if any
similar situation arises in future, the cause of death certificate can be
given by the HOD surgery, who is a medical person.
M C Gupta
MD (Medicine), LL.M
*QUESTION—Medico-legal report is prepared in respect of a**n injured person at a local government hospital and wounds are stitched. Later, he is shifted to a private tertiary care hospital where other conditions (such as
ReplyDeletehaemoperitoneum, haemothorax or intracranial haemorrhage etc.) are discovered by advance imaging techniques and treated. Who is supposed to give a supplementary medical report to the police regarding the nature of the patient's injury?*
* *
*ANSWER—*
1--The plain answer is: Whosoever has information that might be useful in
investigation of a case by the police and is asked by the police to provide such information is legally bound to provide it.
2—If the police asks the tertiary care hospital to give a supplementary
medical report, the police are within rights to do so and the hospital has a
duty to provide the same.
M C Gupta
MD (Medicine), LL.M.
*QUESTION—There appears to be a contradiction between the **PNDT act and MCI
ReplyDeleteRegulations, 2002. As per PNDT act, permission can be given to an
MBBS doctor to perform ultrasonography even though he does not have a
postgraduate qualification in radiodiagnosis, provided he or she has “**six
months training or one year experience in sonography or image scanning”. I
understand that **this training certificate need not mention whether he got
training in obstetric / pregnancy related cases. However, the MCI
Regulations state that **“7.20-- A Physician shall not claim to be
specialist unless he has a special qualification in that branch.”** **How do
you resolve this anomaly?*
* *
*ANSWER—*No. There is no contradiction or anomaly.
1—Your understanding that the training certificate need not mention whether
he got training in obstetric / pregnancy related cases is incorrect. This is
clear from the following two provisions in the PNDT Rules, 2003.
A--The doctor concerned has to apply for registration under the PNDT Act as
per Form A. Registration would be granted only if the statement in response
to item 11 of the Form A is in the affirmative. Item 11 is reproduced below:
“11. State whether the Genetic Counselling Centre/Genetic Laboratory/Genetic
Clinic/ultrasound clinic/imaging centre
[1]
qualifies
for registration in terms of requirements laid down in Rule 3 ]”
CONTD...
B—Relevant portions from Rule 3 referred in item 11 above are reproduced
ReplyDeletebelow:
“3. The qualifications of the employees, the requirement of equipment etc.
for a Genetic Counseling Centre, Genetic Laboratory, Genetic Clinic,
Ultrasound Clinic and Imaging Centre shall be as under:
Xxxxx
Xxxxx
(3) (2) (2) The Genetic Clinic/ultrasound clinic/imaging centre should have
or acquire such of the following equipments, as may be necessary for
carrying out the tests or procedures -
(a) Equipment and accessories necessary for carrying out
clinical examination by an obstetrician or gynaecologist.
(b) An ultra-sonography machine including mobile ultrasound
machine, imaging machine or any other equipment capable of conducting foetal
ultrasonography.
(c) Appropriate catheters and equipment for carrying out
chorionic villi aspirations per vagina or per abdomen.
(d) Appropriate sterile needles for amniocentesis or
cordocentesis.
(e) A suitable foetoscope with appropriate accessories for
foetoscopy, foetal skin or organ biopsy or foetal blood sampling shall be
optional.
(f) Equipment for dry and wet sterilization.
(g) Equipment for carrying out emergency procedures such as
evacuation of uterus or resuscitation in case of need.
(h) Genetic Works Station.”.
2—It is clear that the work place of the doctor concerned will not qualify
for registration in terms of requirements laid down in Rule 3 unless it has
the equipment listed in (3) (2) (2) above. There is no point in having
pregnancy related equipment as a mandatory requirement if the doctor does
not know how to use the equipment. The natural interpretation as per legal
and common sense is that the qualification “for registration in terms of
requirements laid down in Rule 3” means a qualification / proficiency to use
the appropriate equipment listed above.
3—The permission in terms of registration under the PNDT Act is not the same
as the permission in terms of MCI Regulations, 2002. The former refer to
permission to perform ante-natal ultrasound procedures. The latter refers to
“claiming to be an ultrasound specialist. The two are not the same. The
latter has a much wider spectrum and depth of expertise.
M C Gupta
MD (Medicine), LL.M.
*Registration under the PNDT Act means permission to perform ultrasound only
ReplyDeletein antenatal cases. Then why are doctors so registered required to record of
nonpregnant women also? ***
*QUESTION— Doctors registered under the PNDT Act have to keep record of
pregnant and nonpregnant women separately. If they can't perform sonography
on non- pregnant then what is the fun of having a separate register for
nonpregnant patients ?
***
*ANSWER—* The reason is that not only MBBS doctors (who don’t have a
specialist qualification) but also those having PG qualifications in
radiodiagnosis (who are qualified to do ultrasound in general) can be
registered
under the PNDT Act.
**M C Gupta
Ref: Does this mean that to carry out USG on other body organs we do not
ReplyDeleterequire registration. Like in Echocardiography or other organs like liver,
spleen.
1--For carrying out general ultrasonography, a degree in radio-diagnosis is
needed. No need of registration.
2--For carrying out specialty-related ultrasound by specialists, the
situation is covered bythe decision of the MCI Executive Committee dated
27.4.2009 as follows :
“The Executive Committee perused the report of the Sub-Committee and
decision of the Ethics Committee and decided as under :-
The Ultrasonography can be undertaken by a specialist who possess
postgraduate qualification in the specialty of Radio-Diagnosis. However,
specialist doctor in their speciality can also undertake Ultrasonography for
the purpose of certification subject
to the condition that he/she has undergone orientation training in the
ultrasonography in the department of Radio-diagnosis in a recognized medical
institution under recognized medical teacher for a minimum period of 6
months wherein he has not only observed the procedure of Ultrasonography but
also has undergone hands on training to enable him to practice in the field
of Ultrasonography for the diagnostic purposes pertaining to his/her
speciality.”
The above decision of the MCI Executive Committee has been quoted in—
Bachan Singh v. Punjab Health System Corporation, DF, Ferozepur, 28-12-2009
http://www.lawyersclubindia.com/judiciary/Medical-Negligence/1260/
* *
M C Gupta
*QUESTION—What is the role of autopsy reports in medical negligence cases?*
ReplyDelete* *
*ANSWER*—I would like to answer this question from the perspective of my
experience with medico-legal cases as an advocate since 2001. The following
points come to my mind immediately:
1—The autopsy report and opinion carry a lot of weight in the decision of
the case by the court. Because of this, it is extremely important that these
must be executed and recorded very carefully. Unfortunately, this is not
done.
2—Some autopsy reports are mala fide manipulated by the autopsy surgeons. My
doctor clients have told me that they received calls from the autopsy
surgeon to pay up (About Rs. 2 lakh), else they would spoil the report to
the disadvantage of the doctor concerned.
3—Some autopsy reports are outright wrong, as per the opinion of faculty
members of forensic medicine departments to whom I have shown the reports.
4—Almost invariably, the reports are written in hand and are not properly
legible. There ought to be a system whereby computer typed autopsy reports
can be generated and issued under proper signatures of the members of the
autopsy team. This would save much confusion and hassles and would help in
timely dispensation of justice.
5—There is an urgent need for proper guidelines, including Do’s and Don’ts,
for autopsy surgeons as regards giving opinion as to the cause of death.
Frequently I come across statements like: “medical negligence cannot be
ruled out”. To my mind, this is unacceptable and improper. Medical treatment
continues for a period of time before the death occurs. The type of disease;
the patho-physiology; the treatment modalities; the types of investigations
and their interpretation, etc., are all so complex now-a-days that even
internists and DMs can have different opinions. These complexities are
incomprehensible by an autopsy surgeon who neither has related detailed
medical knowledge; all treatment papers; or, the time available to read the
same carefully. However, when the autopsy surgeon gives even a wrong
statement about medical negligence as the cause of death, it gets fixed in
the mind of the complainant / prosecution and the judge and it becomes very
difficult to counter such fixation.
6—Very often some tissues are preserved and sent for further examination,
such as histopathology or chemical examination, but the opinion as to the
cause of death is given as if it is the final one, rather than labeling it
as: “Interim opinion is as follows. Final opinion will be given after the
reports of pending tests are obtained”. The interim report is often viewed
by the courts as a final report, thereby causing possible miscarriage of
justice.
7—Responsibility for procurement and recording of the test reports from the
referral laboratory ought to that of the forensic medicine department /
person doing the autopsy and the final report / opinion should be given to
the police within two weeks of receipt of the laboratory reports.
8—Photographs / video records of the body and the autopsy process /
proceedings need to be taken and preserved so that these can be referred in
case of doubt. These will also serve as teaching material / case studies for
teaching of forensic medicine.
M C Gupta
*QUESTION—What is the role of autopsy reports in medical negligence cases?*
ReplyDelete* *
*ANSWER*—I would like to answer this question from the perspective of my
experience with medico-legal cases as an advocate since 2001. The following
points come to my mind immediately:
1—The autopsy report and opinion carry a lot of weight in the decision of
the case by the court. Because of this, it is extremely important that these
must be executed and recorded very carefully. Unfortunately, this is not
done.
2—Some autopsy reports are mala fide manipulated by the autopsy surgeons. My
doctor clients have told me that they received calls from the autopsy
surgeon to pay up (About Rs. 2 lakh), else they would spoil the report to
the disadvantage of the doctor concerned.
3—Some autopsy reports are outright wrong, as per the opinion of faculty
members of forensic medicine departments to whom I have shown the reports.
4—Almost invariably, the reports are written in hand and are not properly
legible. There ought to be a system whereby computer typed autopsy reports
can be generated and issued under proper signatures of the members of the
autopsy team. This would save much confusion and hassles and would help in
timely dispensation of justice.
5—There is an urgent need for proper guidelines, including Do’s and Don’ts,
for autopsy surgeons as regards giving opinion as to the cause of death.
Frequently I come across statements like: “medical negligence cannot be
ruled out”. To my mind, this is unacceptable and improper. Medical treatment
continues for a period of time before the death occurs. The type of disease;
the patho-physiology; the treatment modalities; the types of investigations
and their interpretation, etc., are all so complex now-a-days that even
internists and DMs can have different opinions. These complexities are
incomprehensible by an autopsy surgeon who neither has related detailed
medical knowledge; all treatment papers; or, the time available to read the
same carefully. However, when the autopsy surgeon gives even a wrong
statement about medical negligence as the cause of death, it gets fixed in
the mind of the complainant / prosecution and the judge and it becomes very
difficult to counter such fixation.
6—Very often some tissues are preserved and sent for further examination,
such as histopathology or chemical examination, but the opinion as to the
cause of death is given as if it is the final one, rather than labeling it
as: “Interim opinion is as follows. Final opinion will be given after the
reports of pending tests are obtained”. The interim report is often viewed
by the courts as a final report, thereby causing possible miscarriage of
justice.
7—Responsibility for procurement and recording of the test reports from the
referral laboratory ought to that of the forensic medicine department /
person doing the autopsy and the final report / opinion should be given to
the police within two weeks of receipt of the laboratory reports.
8—Photographs / video records of the body and the autopsy process /
proceedings need to be taken and preserved so that these can be referred in
case of doubt. These will also serve as teaching material / case studies for
teaching of forensic medicine.
M C Gupta
QUESTION—What is the role of autopsy reports in medical negligence cases?*
ReplyDelete* *
*ANSWER*—I would like to answer this question from the perspective of my
experience with medico-legal cases as an advocate since 2001. The following
points come to my mind immediately:
1—The autopsy report and opinion carry a lot of weight in the decision of
the case by the court. Because of this, it is extremely important that these
must be executed and recorded very carefully. Unfortunately, this is not
done.
2—Some autopsy reports are mala fide manipulated by the autopsy surgeons. My
doctor clients have told me that they received calls from the autopsy
surgeon to pay up (About Rs. 2 lakh), else they would spoil the report to
the disadvantage of the doctor concerned.
3—Some autopsy reports are outright wrong, as per the opinion of faculty
members of forensic medicine departments to whom I have shown the reports.
4—Almost invariably, the reports are written in hand and are not properly
legible. There ought to be a system whereby computer typed autopsy reports
can be generated and issued under proper signatures of the members of the
autopsy team. This would save much confusion and hassles and would help in
timely dispensation of justice.
CONTD...
5—There is an urgent need for proper guidelines, including Do’s and Don’ts,
ReplyDeletefor autopsy surgeons as regards giving opinion as to the cause of death.
Frequently I come across statements like: “medical negligence cannot be
ruled out”. To my mind, this is unacceptable and improper. Medical treatment
continues for a period of time before the death occurs. The type of disease;
the patho-physiology; the treatment modalities; the types of investigations
and their interpretation, etc., are all so complex now-a-days that even
internists and DMs can have different opinions. These complexities are
incomprehensible by an autopsy surgeon who neither has related detailed
medical knowledge; all treatment papers; or, the time available to read the
same carefully. However, when the autopsy surgeon gives even a wrong
statement about medical negligence as the cause of death, it gets fixed in
the mind of the complainant / prosecution and the judge and it becomes very
difficult to counter such fixation.
6—Very often some tissues are preserved and sent for further examination,
such as histopathology or chemical examination, but the opinion as to the
cause of death is given as if it is the final one, rather than labeling it
as: “Interim opinion is as follows. Final opinion will be given after the
reports of pending tests are obtained”. The interim report is often viewed
by the courts as a final report, thereby causing possible miscarriage of
justice.
7—Responsibility for procurement and recording of the test reports from the
referral laboratory ought to that of the forensic medicine department /
person doing the autopsy and the final report / opinion should be given to
the police within two weeks of receipt of the laboratory reports.
8—Photographs / video records of the body and the autopsy process /
proceedings need to be taken and preserved so that these can be referred in
case of doubt. These will also serve as teaching material / case studies for
teaching of forensic medicine.
M C Gupta
MD (Medicine), LL.M.
Ex-Professor and Dean
QUESTION-- I am running a charitable blood bank where blood is collected
ReplyDeleteonly from voluntary donors and replacement donors. A number of hospital
employees and others act as touts for professional blood donors and
commercial blood banks, some of which are even unlicensed and illegal, and
dissuade voluntary donors, convincing them that blood donation will cause
harm. What can be done?
ANSWER--
1—If people get convinced by touts’ propaganda that blood donation is
harmful and do not realise the advantages of safety inherent in voluntarily
donated blood compared to that from professional donors, it means two
things: ONE, that they lack knowledge and understanding; TWO, that the blood
bank / hospital lacks effective sensitization and awareness efforts on their
part.
REMEDY— Organise one or more of the following:
a—Distribute appropriate literature to patients / relatives / potential
donors.
b—Install a CCTV in the hospital / blood bank where educational and
promotional films about health and blood donation are shown.
c—Honour the voluntary donors. Give them a laminated certificate that they
can proudly display in their home / office. This will act as a permanent
incentive and advertisement for the community.
d—Organise an annual blood donation day, maybe on the occasion of the annual
day of the hospital / blood bank, where commemorative plaques are given to
those who have donated blood total 5 times in the past or total 2 times
within last 12 months.
e—Display on an honour board the names of prominent blood donors
f—Give an official certificate of blood donation to the donor, wherein a
recommendation is made that the person may be given, say, special paid
casual leave by his employer. (Government conduct rules provide for one
day’s special casual leave on the day of donation. Nothing prevents the
employer from giving leave for more than a day or to give light duties etc.)
g—Tie up with a hospital / laboratory/ pharma company and organise a scheme
/ program for a simple, free health / laboratory check up for voluntary
blood donors.
h—Display the advantages / disadvantages of voluntary / paid blood donation
on wall charts etc. in the hospital.
i—Develop a web site for the hospital with a section for blood bank where
proper health education about blood donation should be given, including
advantages / disadvantages of voluntary / paid blood donation. Patients and
their relatives should be encouraged to visit the web site.
2—If people are acting as touts and interfering with the legitimate
functioning of a licensed blood bank to the detriment of health of the
people and encouraging paid / professional donation, which is an illegal
activity, take action against them. Before initiating action, collect and
preserve documentary evidence. With that evidence, you may take the
following action:
a—Report to police. [You may consult the hospital advocate. You may also
meet the SHO personally].
b—Take departmental / disciplinary action against hospital / blood bank
employees acting as touts.
M C Gupta
MD (Medicine), LL.M.
QUESTION-- I am running a charitable blood bank where blood is collected
ReplyDeleteonly from voluntary donors and replacement donors. A number of hospital
employees and others act as touts for professional blood donors and
commercial blood banks, some of which are even unlicensed and illegal, and
dissuade voluntary donors, convincing them that blood donation will cause
harm. What can be done?
ANSWER--
1—If people get convinced by touts’ propaganda that blood donation is
harmful and do not realise the advantages of safety inherent in voluntarily
donated blood compared to that from professional donors, it means two
things: ONE, that they lack knowledge and understanding; TWO, that the blood
bank / hospital lacks effective sensitization and awareness efforts on their
part.
REMEDY— Organise one or more of the following:
a—Distribute appropriate literature to patients / relatives / potential
donors.
b—Install a CCTV in the hospital / blood bank where educational and
promotional films about health and blood donation are shown.
c—Honour the voluntary donors. Give them a laminated certificate that they
can proudly display in their home / office. This will act as a permanent
incentive and advertisement for the community.
d—Organise an annual blood donation day, maybe on the occasion of the annual
day of the hospital / blood bank, where commemorative plaques are given to
those who have donated blood total 5 times in the past or total 2 times
within last 12 months.
e—Display on an honour board the names of prominent blood donors
f—Give an official certificate of blood donation to the donor, wherein a
recommendation is made that the person may be given, say, special paid
casual leave by his employer. (Government conduct rules provide for one
day’s special casual leave on the day of donation. Nothing prevents the
employer from giving leave for more than a day or to give light duties etc.)
g—Tie up with a hospital / laboratory/ pharma company and organise a scheme
/ program for a simple, free health / laboratory check up for voluntary
blood donors.
h—Display the advantages / disadvantages of voluntary / paid blood donation
on wall charts etc. in the hospital.
i—Develop a web site for the hospital with a section for blood bank where
proper health education about blood donation should be given, including
advantages / disadvantages of voluntary / paid blood donation. Patients and
their relatives should be encouraged to visit the web site.
QUESTION-- I am running a charitable blood bank where blood is collected
ReplyDeleteonly from voluntary donors and replacement donors. A number of hospital
employees and others act as touts for professional blood donors and
commercial blood banks, some of which are even unlicensed and illegal, and
dissuade voluntary donors, convincing them that blood donation will cause
harm. What can be done?
ANSWER--
1—If people get convinced by touts’ propaganda that blood donation is
harmful and do not realise the advantages of safety inherent in voluntarily
donated blood compared to that from professional donors, it means two
things: ONE, that they lack knowledge and understanding; TWO, that the blood
bank / hospital lacks effective sensitization and awareness efforts on their
part.
REMEDY— Organise one or more of the following:
a—Distribute appropriate literature to patients / relatives / potential
donors.
b—Install a CCTV in the hospital / blood bank where educational and
promotional films about health and blood donation are shown.
c—Honour the voluntary donors. Give them a laminated certificate that they
can proudly display in their home / office. This will act as a permanent
incentive and advertisement for the community.
d—Organise an annual blood donation day, maybe on the occasion of the annual
day of the hospital / blood bank, where commemorative plaques are given to
those who have donated blood total 5 times in the past or total 2 times
within last 12 months.
COntd...
e—Display on an honour board the names of prominent blood donors
ReplyDeletef—Give an official certificate of blood donation to the donor, wherein a
recommendation is made that the person may be given, say, special paid
casual leave by his employer. (Government conduct rules provide for one
day’s special casual leave on the day of donation. Nothing prevents the
employer from giving leave for more than a day or to give light duties etc.)
g—Tie up with a hospital / laboratory/ pharma company and organise a scheme
/ program for a simple, free health / laboratory check up for voluntary
blood donors.
h—Display the advantages / disadvantages of voluntary / paid blood donation
on wall charts etc. in the hospital.
i—Develop a web site for the hospital with a section for blood bank where
proper health education about blood donation should be given, including
advantages / disadvantages of voluntary / paid blood donation. Patients and
their relatives should be encouraged to visit the web site.
2—If people are acting as touts and interfering with the legitimate
functioning of a licensed blood bank to the detriment of health of the
people and encouraging paid / professional donation, which is an illegal
activity, take action against them. Before initiating action, collect and
preserve documentary evidence. With that evidence, you may take the
following action:
a—Report to police. [You may consult the hospital advocate. You may also
meet the SHO personally].
b—Take departmental / disciplinary action against hospital / blood bank
employees acting as touts.
M C Gupta
*QUESTION-- What is the time period for which hospital files and other
ReplyDeleterecords like cash receipts, staff attendance register, salary vouchers etc.
should be kept?*
* *
*ANSWER--*
1--The period for which hospitals should maintain records is specified in
DGHS letter No. 10-3/68-MH dated 31-8-68 as follows:
For inpatient medical records (case sheets)……………….10 years
For medico-legal registers…………………………………….10 years
For outpatient records………………………………………….5 years
The above requirement can be found in the “Hospital Manual” published in
2002 by the Directorate General of Health Services, MOHFW, GOI, in chapter
12 titled “Medical Record Services”.
2--As per basic legal principles and practical necessities and prudent
hospital management practice, the decision to destroy past records of a
hospital should be taken by a board of doctors who should certify that the
records for a particular period may be destroyed. Before destruction, the
board should do the following:
a—Preserve on its own the medico-legal cases; cases of VIPs and politically
sensitive cases; cases of rare diseases; cases belonging to ongoing research
projects (some research projects may continue for decades) etc.
b—Ask all departments to send a list of cases that they want to be
preserved.
c—Issue a public notice that the records for a specified period are
proposed to be destroyed and anybody objecting to it or desirous of
obtaining from the hospital any records may approach the hospital in writing
within a period of 30 days.
3-- Government hospitals should maintain financial records etc. as per the
existing government instructions.
CONTd...
4—A guideline for the private hospitals may be obtained from the
ReplyDeleterequirements for private practitioners. In terms of rule 6F (3) of the
Income Tax Rules, 1962, doctors in private practice are required to
preserve the daily case register as per Form 3C for a period of six years
from the end of the relevant assessment year. That would ordinarily mean for
seven years from the close of the accounting year. It is to be expected that
the period for which a hospitals would be required to keep financial records
would be more than this. Twelve years would be a reasonable period.
5—There seems to be a belief in some quarters that records related to child
birth should be retained for 21 years because the child attains majority
only at that age. I do not find any logic in this.
6— Regulation 1.3.4 of the Indian Medical Council (Professional conduct,
Etiquette and Ethics) Regulations, 2002. reads:
“1.3.4 Efforts shall be made to computerize medical records for quick
retrieval.”
The MCI regulations are meant for individual doctors. However, it stands to
reason that if computerization is desirable for individual practitioners, it
should be mandatory for hospitals.
M C Gupta
MD (Medicine), LL.M.
Ex-Professor and Dean
Practicing advocate
Doubts regarding the scope of medico-legal field and experts*
ReplyDelete**
*QUESTION—I shall be grateful if you address the following queries regarding
the medico-legal field:*
* *
*1—Can a person with an MBBS and LL.B. degree who has joined the bar be
called a medicolegal expert?*
* *
*2--Can a person having the degree of MD-Forensic Medicine but not a law
degree be called a medicolegal expert?*
* *
*3. Can a person having both law and medicine degrees practice both
professions simultaneouly?*
* *
*4. Can a person having both law and medicine degrees, but practising as an
advocate, still be called a medicolegal expert?*
* *
*5. Do you agree with the following statements?*
* *
* a--Forensic medicine deals with application of knowledge of medicine in
the aid of administration of justice in the court of law.*
*b-- Legal aspects of medicine are taught in forensic medicine.*
*c-- All medicolegal aspects of unnatural death / bodily injury are dealt by
forensic medicine experts.*
* *
* *
*ANSWER-*
1—Yes. A person with an MBBS and LL.B. degree who has joined the bar can be
called a medicolegal expert?
2-- If the term medico-legal expert means a person who is expert in law as
well as medicine, then an MD in forensic medicine cannot be called a
medicolegal expert. A person having such degree would certainly know some
aspects of law related to his specialty and can certainly appear in the
courts as an expert witness who has expertise in his particular specialty of
medicine, namely, forensic medicine.
CONTd...
3. No. A person having both law and medicine degrees cannot practice both
ReplyDeleteprofessions simultaneously. This is illegal in terms of (Dr.) Haniraj L.
Chulani Versus Bar Council of Maharashtra and Goa, SC, decided on . 8.4.1996
by A.M. Ahmadi, CJI, S.B. Majmudar and Mrs. Sujata V. Manohar, JJ*. *
4. Yes. A person having both law and medicine degrees, but practising as an
advocate, can still be called a medicolegal expert But, even though there is
no specific bar, it is better for such a person not to appear as expert
medical witness in a court. However, he may do so, if necessary for the ends
of justice in the particular circumstances of a case and with the permission
of the court or on the instructions of the court, without concealing from
the court that he is an advocate. [I have, under such circumstances, after
being summoned by the court, appeared as an expert medical witness for the
complainant in the State Consumer Commission, Chandigarh, and was also cross
examined by the lawyer of the doctor concerned. I was in my lawyer’s dress.
In two other cases, I have given my detailed written medico-legal opinion in
the National Commission on behalf of the complainants and it was accepted by
the court. In all these three cases, I was not the arguing counsel for the
complainants. There were special circumstances in each of the three cases.
In general, I avoid appearing as expert witness.]
5. Yes. I agree with all the three statements.
M C Gupta
MD (Medicine), LL.M.
Ex-Professor and Dean
Practicing advocate
*QUESTION—There is ambiguity regarding the various terms related to the
ReplyDeletemedico-legal field. Can you please clarify?*
* *
*ANSWER—*Much of the confusion arises because specialists in forensic
medicine believe and hold out that they are legal experts. They consider it
to be their sole prerogative to deal with medico-legal issues. What is the
medico-legal field and what is a medico-legal case and who is a medico-legal
expert are questions that do not have and cannot have a straight or well
defined or legal answer. Nobody can claim monopoly over a certain field
which is not properly defined.
The following may be useful for the purpose of understanding.
*1--DEFINITION OF **MEDICOLEGAL*
a--Medicolegal = Of, relating to, or concerned with medicine and law.
(The American Heritage® Medical Dictionary Copyright © 2007, 2004 by
Houghton Mifflin Company. Published by Houghton Mifflin Company.)
b--Medicolegal = pertaining to both medicine and law. Medicolegal
considerations are a significant part of the process of making many patient
care decisions and determining definitions and policies for the treatment of
mentally incompetent people and minors, the performance of sterilization or
therapeutic abortion, and the care of terminally ill patients. Medicolegal
considerations, decisions, definitions, and policies provide the framework
for informed consent, professional liability, and many other aspects of
current practice in the health care field.
Mosby's Medical Dictionary, 8th edition. © 2009, Elsevier.
Contd ...
2--DEFINITION OF LEGAL MEDICINE*
ReplyDelete* *
a-- Legal Medicine includes: Civil Legal Medicine; medical ethics; Forensic
Legal Medicine; and, Medical Practice areas Connected with Statute Law.
http://www.365companies.com/medico-legal-outsourcing/
--(as per the web site of a company dealing with legal medicine)
b--legal medicine—It is another name for forensic medicine.
Collins English Dictionary – Complete and
Unabridged©
HarperCollins Publishers 1991, 1994, 1998, 2000, 2003
c--Definition of Legal medicine: Legal medicine is the branch of medicine
that deals with the application of medical knowledge to legal problems and
legal proceedings. Legal medicine is also called forensic medicine. A
physician may be engaged in legal (or forensic) medicine while a lawyer with
identical interests is said to be in medical jurisprudence. It just depends
upon the direction you are coming from.
http://www.medterms.com/script/main/art.asp?articlekey=10607
*Comment (*by M C Gupta)—This definition makes an interesting distinction
between legal medicine and medical jurisprudence. Though the two terms are
often used interchangeably, the definition given here is conceptually
important to appreciate the scope of the interface between medicine and law.
Such interface can be focused upon by three types of professionals as
follows:
i—Medical professionals: When they study certain aspects of law as part of
their medical training, they are said to indulge in legal medicine. The
medical professionals who study these aspects as part of their special
training are those pursuing the career of forensic medicine after undergoing
a course of study leading to the degree of MD in forensic medicine. In this
sense, legal medicine and forensic medicine are synonyms and are part of the
larger field of medicine.
CONTd...
ii—Law professionals: When they study in depth certain aspects of medicine
ReplyDeleteas part of the practice and needs of their profession as lawyers, they are
said to indulge in medical jurisprudence. In this sense, medical
jurisprudence is a part of the larger field of jurisprudence / law. (The
title / degree JD in the USA refers to Doctor of Jurisprudence, on the lines
of MD for Doctor of Medicine).
iii-- Medical professionals converted to Law professionals: This refers to
persons having both law and medical degrees. Examples may be: MD-JD degree
holders in USA; MBBS-LL.B. degree holders in India.
*3--DEFINITION OF MEDICAL JURISPRUDENCE*
a--MEDICAL JURISPRUDENCE. That science which applies the principles and
practice of the different branches of medicine to the elucidation of
doubtful questions in courts of justice. By some authors, it is used in a
more extensive sense and also comprehends Medical Police, or those medical
precepts which may prove useful to the legislature or the magistracy. Some
authors, instead of using the phrase medical jurisprudence, employ, to
convey the same idea, those of legal medicine, forensic medicine, or, as the
Germans have it, state medicine.
http://legal-dictionary.thefreedictionary.com/Medical+jurisprudence
4--*DEFINITION OF A MEDICO-LEGAL EXPERT*
a--A medico-legal expert is a medical doctor who:
i—Has fully completed a postgraduate training in legal medicine, preferably
at university level and, where appropriate, is accredited as a medico-legal
expert by the supervising authority in his or her own country and,
ii—Who habitually practices that specialty.
From: The European Council—The Harmonisation of medico-legal autopsy rules
–Recommendation no. R(99)3; January 2000
http://books.google.com/books?id=muAvMt5cu9UC&pg=PA33&lpg=PA33&dq=%22definition+of+medico-legal+expert%22&source=bl&ots=YHWpwcLnAL&sig=2t_rz7l4W_Oz0blF739z5RSUhf0&hl=en&ei=3qQ9TNfeK4HsvQP935D6Dg&sa=X&oi=book_result&ct=result&resnum=1&ved=0CBIQ6AEwAA#v=onepage&q=%22definition%20of%20medico-legal%20expert%22&f=false
CONTd...
ii—Law professionals: When they study in depth certain aspects of medicine
ReplyDeleteas part of the practice and needs of their profession as lawyers, they are
said to indulge in medical jurisprudence. In this sense, medical
jurisprudence is a part of the larger field of jurisprudence / law. (The
title / degree JD in the USA refers to Doctor of Jurisprudence, on the lines
of MD for Doctor of Medicine).
iii-- Medical professionals converted to Law professionals: This refers to
persons having both law and medical degrees. Examples may be: MD-JD degree
holders in USA; MBBS-LL.B. degree holders in India.
*3--DEFINITION OF MEDICAL JURISPRUDENCE*
a--MEDICAL JURISPRUDENCE. That science which applies the principles and
practice of the different branches of medicine to the elucidation of
doubtful questions in courts of justice. By some authors, it is used in a
more extensive sense and also comprehends Medical Police, or those medical
precepts which may prove useful to the legislature or the magistracy. Some
authors, instead of using the phrase medical jurisprudence, employ, to
convey the same idea, those of legal medicine, forensic medicine, or, as the
Germans have it, state medicine.
http://legal-dictionary.thefreedictionary.com/Medical+jurisprudence
4--*DEFINITION OF A MEDICO-LEGAL EXPERT*
a--A medico-legal expert is a medical doctor who:
i—Has fully completed a postgraduate training in legal medicine, preferably
at university level and, where appropriate, is accredited as a medico-legal
expert by the supervising authority in his or her own country and,
ii—Who habitually practices that specialty.
From: The European Council—The Harmonisation of medico-legal autopsy rules
–Recommendation no. R(99)3; January 2000
http://books.google.com/books?id=muAvMt5cu9UC&pg=PA33&lpg=PA33&dq=%22definition+of+medico-legal+expert%22&source=bl&ots=YHWpwcLnAL&sig=2t_rz7l4W_Oz0blF739z5RSUhf0&hl=en&ei=3qQ9TNfeK4HsvQP935D6Dg&sa=X&oi=book_result&ct=result&resnum=1&ved=0CBIQ6AEwAA#v=onepage&q=%22definition%20of%20medico-legal%20expert%22&f=false
ii—Law professionals: When they study in depth certain aspects of medicine
ReplyDeleteas part of the practice and needs of their profession as lawyers, they are
said to indulge in medical jurisprudence. In this sense, medical
jurisprudence is a part of the larger field of jurisprudence / law. (The
title / degree JD in the USA refers to Doctor of Jurisprudence, on the lines
of MD for Doctor of Medicine).
iii-- Medical professionals converted to Law professionals: This refers to
persons having both law and medical degrees. Examples may be: MD-JD degree
holders in USA; MBBS-LL.B. degree holders in India.
*3--DEFINITION OF MEDICAL JURISPRUDENCE*
a--MEDICAL JURISPRUDENCE. That science which applies the principles and
practice of the different branches of medicine to the elucidation of
doubtful questions in courts of justice. By some authors, it is used in a
more extensive sense and also comprehends Medical Police, or those medical
precepts which may prove useful to the legislature or the magistracy. Some
authors, instead of using the phrase medical jurisprudence, employ, to
convey the same idea, those of legal medicine, forensic medicine, or, as the
Germans have it, state medicine.
http://legal-dictionary.thefreedictionary.com/Medical+jurisprudence
CONTd
4--*DEFINITION OF A MEDICO-LEGAL EXPERT*
ReplyDeletea--A medico-legal expert is a medical doctor who:
i—Has fully completed a postgraduate training in legal medicine, preferably
at university level and, where appropriate, is accredited as a medico-legal
expert by the supervising authority in his or her own country and,
ii—Who habitually practices that specialty.
From: The European Council—The Harmonisation of medico-legal autopsy rules
–Recommendation no. R(99)3; January 2000
http://books.google.com/books?id=muAvMt5cu9UC&pg=PA33&lpg=PA33&dq=%22definition+of+medico-legal+expert%22&source=bl&ots=YHWpwcLnAL&sig=2t_rz7l4W_Oz0blF739z5RSUhf0&hl=en&ei=3qQ9TNfeK4HsvQP935D6Dg&sa=X&oi=book_result&ct=result&resnum=1&ved=0CBIQ6AEwAA#v=onepage&q=%22definition%20of%20medico-legal%20expert%22&f=false
b—There is no standard definition of a medico-legal expert. Common sense
dictates that a medico-legal expert is a person having expertise in medicine
as well as law. Nobody can have expertise in a subject if he has not
formally studied the subject and obtained a recognised qualification in it.
That would mean that, logically, a medico-legal expert would be that person
who has a degree in law as well as medicine. As per this approach, an expert
in forensic medicine is a medical expert with special expertise in forensic
medicine. He is not a medico-legal expert because he has a degree only in
medicine, not in law.
M C Gupta (In answer to a question, 14 July 2010)
5--* DEFINITION OF **MEDICOLEGAL PRACTICE*
Medical Protection Society of UK (MPS UK) defines medicolegal practice as
‘examinations and/or reports prepared in the context of prospective and/or
actual proceedings in the civil and criminal courts’.
http://www.medicalprotection.org/adx/aspx/adxGetMedia.aspx?DocID=21885,123,121,9698,22,11,Documents&MediaID=5924&Filename=Scot+Cons+rates+April_A5.pdf
6--*DEFINITION OF MEDICO-LEGAL CASE*
ReplyDeleteThere is no specific or legal definition of a medico-legal case. The meaning
of the term is inherent in the word medico-legal. A medico-legal case would
be one which concerns both medicine and law. One can say that a medico-legal
case is the case of a patient treated by a doctor where there may be a
possibility that the case may have legal connotations. Examples of such
connotations are as follows:
--When the cause of injury /disease may be unnatural or in violation of law
(poisoning; suffocation; drowning; gunshot or hatchet wound; rape; child
molestation, etc.)
--When there may be clear cut possibility of claim /compensation under some
law—such as road accidents involving motor vehicles.[All such injured
persons can claim compensation under the Motor Vehicles Act, 1988, and also
under various insurance policies.]
--When the person is a fugitive from law. [Even if a person seeks treatment
for common cold and the doctor knows him or suspects him to be a murderer or
rapist avoiding the clutches of law, he may have to consider whether to
inform the police, especially in case he is admitted to the nursing home /
hospital. This is not a case of injury / diseased caused through violation
of law and is not strictly a medico-legal case. However, every citizen has a
legal duty to report a crime or criminal or evidence of crime to the police
and a doctor who provides safe cover to a fugitive may be hauled up by the
police for shielding a criminal. To repeat—reporting such a case to police
is obligatory not as a doctor’s duty in a medico-legal case but as an
ordinary citizen’s duty to society. This is a gray area where the doctor
must exercise his own judgment and discretion. When a doctor is faced with
the dilemma of choosing between saving life or fulfilling legal formalities,
he should give preference to the former. The legal formalities can be
attended to later on after the life-saving treatment has been given. This is
the letter and spirit of the judgment in Pt. Parmanand Katara Vs Union of
India and Others, decided by Supreme Court on 28.08.1989.
--Dr. M C Gupta, in response to a question, 9 December 2009
* *
-- M C Gupta
6--*DEFINITION OF MEDICO-LEGAL CASE*
ReplyDeleteThere is no specific or legal definition of a medico-legal case. The meaning
of the term is inherent in the word medico-legal. A medico-legal case would
be one which concerns both medicine and law. One can say that a medico-legal
case is the case of a patient treated by a doctor where there may be a
possibility that the case may have legal connotations. Examples of such
connotations are as follows:
--When the cause of injury /disease may be unnatural or in violation of law
(poisoning; suffocation; drowning; gunshot or hatchet wound; rape; child
molestation, etc.)
--When there may be clear cut possibility of claim /compensation under some
law—such as road accidents involving motor vehicles.[All such injured
persons can claim compensation under the Motor Vehicles Act, 1988, and also
under various insurance policies.]
--When the person is a fugitive from law. [Even if a person seeks treatment
for common cold and the doctor knows him or suspects him to be a murderer or
rapist avoiding the clutches of law, he may have to consider whether to
inform the police, especially in case he is admitted to the nursing home /
hospital. This is not a case of injury / diseased caused through violation
of law and is not strictly a medico-legal case. However, every citizen has a
legal duty to report a crime or criminal or evidence of crime to the police
and a doctor who provides safe cover to a fugitive may be hauled up by the
police for shielding a criminal. To repeat—reporting such a case to police
is obligatory not as a doctor’s duty in a medico-legal case but as an
ordinary citizen’s duty to society. This is a gray area where the doctor
must exercise his own judgment and discretion. When a doctor is faced with
the dilemma of choosing between saving life or fulfilling legal formalities,
he should give preference to the former. The legal formalities can be
attended to later on after the life-saving treatment has been given. This is
the letter and spirit of the judgment in Pt. Parmanand Katara Vs Union of
India and Others, decided by Supreme Court on 28.08.1989.
--Dr. M C Gupta, in response to a question, 9 December 2009
QUESTION—Is it correct that if I get the degree of MD in forensic medicine and also get an LL.B. degree, I can **practice only one degree?***
ReplyDelete*ANSWER*- No, it is not correct. The correct position is that you cannot practice both the medical and legal professions simultaneously. There is nothing like practicing both degrees simultaneously.
1—As per the Supreme Court judgment in (Dr.) Haniraj L. Chulani Versus Bar
Council of Maharashtra and Goa, SC, decided on 8.4.1996, the bar is on practicing another profession simultaneously along with the legal profession as an advocate enrolled with the bar council. There is nothing like practicing a degree.
2--If you do not join the bar, you can legally continue to do the following:
a—Practice medicine in whatsoever manner, whether as a GP or as a forensic medicine specialist or both at the same time.
b—Practice as a legal consultant, which can include everything from giving legal / medico-legal opinion; drafting of pleadings; and, even argue in some cases, especially consumer cases, if the court permits you to appear.
However, you cannot appear for others as their lawyer. Some doctors are doing just that and earning a good amount.
3—If you join the bar, you can still legally continue to do the following:
a—Give opinion related to forensic medicine to those who need it;
b—Give even written expert opinion related to forensic medicine, as long as you do not conceal anything and state clearly therein that you are an advocate. It is likely that such opinion would be accepted in the court.
c-- Give a draft written expert opinion related to forensic medicine to your colleague expert in forensic medicine who is not an advocate and get it formally issued under his signature.
4—Please note that consultation or giving opinion in itself is not the same as indulging in medical practice. To illustrate: if a doctor who has enrolled as an advocate gives consultancy to a health project or to a
hospital as regards planning, evaluation, administration, epidemiology etc., or gives lectures on health / medical topics, it does NOT amount to practicing medicine, which essentially means establishing a doctor-patient
relationship and working within that relationship.
M C Gupta
MD (Medicine), LL.M.
Do MD forensic medicine students learn sufficient law to call themselves as
ReplyDeleteexperts in law?*
QUESTION—Is it correct that forensic post-graduate students learn a good amount of law, qualifying them to be called legal experts?
ANSWER- No. It is not correct for the following reasons:
1—One can be said to have gained expertise in law only when one is taught by legal experts and the teaching itself is evaluated by legal experts. The teachers and examiners of MD forensic medicine are not law experts.
2—A teaching course can be said to impart expertise in a subject if the course syllabus, the course books prescribed / recommended and the questions in the examination papers for the course reflect sufficient coverage of the
subject in width and depth. The detailed MD forensic medicine curriculum, books and examination papers can be viewed at
http://www.forensicwayout.com/Portals/0/PG%20Curriculum%20final.pdf
An analysis of the above shows that:
--There is very little component of law.
--The only reference books that pertain to law are the IPC, the CrPC and the Evidence Act.
--The question papers have very little component of law.
3—A teaching course is known by the title of the course. The title MD forensic medicine makes it clear that it is a medical course.
M C Gupta
MD (Medicine), LL.M.
Ex-Professor and Dean
QUESTION—Can you please answer the following?
ReplyDelete1—Is there a legal definition of the term medico-legal expert?
2—How can a person having a medical and law degree be called a medico-legal expert?
3—What is meant by a medico-legal case?
ANSWER—
1—No. There is no legal definition of the term medico-legal expert.
2—A person having a medical and law degree be called a medico-legal expert because he has documented expertise in both medicine and law.
3---*DEFINITION OF MEDICO-LEGAL CASE*
There is no specific or legal definition of a medico-legal case. The meaning of the term is inherent in the word medico-legal. A medico-legal case would be one which concerns both medicine and law. One can say that a medico-legal case is the case of a patient treated by a doctor where there may be a possibility that the case may have legal connotations. Examples of such connotations are as follows:
--When the cause of injury /disease may be unnatural or in violation of law(poisoning; suffocation; drowning; gunshot or hatchet wound; rape; child molestation, etc.)
--When there may be clear cut possibility of claim /compensation under some law—such as road accidents involving motor vehicles.[All such injured persons can claim compensation under the Motor Vehicles Act, 1988, and also
under various insurance policies.]
--When investigative or judicial authorities refer the case to a doctor for his opinion.
-- M C Gupta
MD (Medicine), LL.M.
Ex-Professor
Practicing advocate
QUESTION—Is it possible for a doctor in private practice to get an LL.B. degree?*
ReplyDelete*ANSWER*— Yes. It is possible.
1—First, let it be clear that the studies for LL.B. degree are not difficult. If somebody wants to top in the university, yes, he would have to work very hard. However, to get ordinary marks is not difficult at all,
especially for a person having an MBBS degree.
2—Second, let it be clear that as per law, an LL. B. student needs to have only 66% attendance.
3—LL.B. cannot be done through correspondence course.
4—Doing LL.B. through evening college should not be a problem, as a little calculation would show:
--Often it is a 5 day week in a law college for students. There are many holidays etc., plus strikes as in any university, plus two months’ vacation plus preparatory holidays before examinations plus 2-3 days between two
papers during 3-4 weeks long examinations. Multiply the actual class days by 0.66 and you may have, say, 150 mandatory class days, including examination days, in a year, usually Monday to Friday.
--Total days in a year= 365
Saturdays, Sundays, available for the clinic = 104
Remaining days = 365-104 = 261
Total class days = 150
Subtracting these from 261, we get 261-150 = 111
Thus if a doctor honestly attends evening LL.B. classes on 150 days in a year, he can still be resent in the clinic on 104+111 = 215 days in a year,.
-Add a bit of common dishonesty in colleges [proxy attendance] in respect of 1/3 of the 150 days. You get 50 days more. So, you can have the clinic on 265 days in a year, which means 5 days a week. You may declare Monday and
Thursday off from the clinic [or, some doctor colleague can see patients on those days and the clinic may never close.
[If you let the students and teachers know that you are a doctor, you will be surprised to know how willing both of them would be to mark proxy
attendance for you!]
In my case, I did not miss a single class and did not tell anybody that Iwas a doctor. But, you need not be like me.
4—There are some law colleges which, for a consideration, are willing to mark your attendance etc. and you may get the examination roll number / entrance card without attending any classes. You can certainly study the
guide books commonly available and secure 60% marks even by studying those books well. Each guide book is about 100 pages, one for each paper, and carries solved questions from previous years. There are 30 subjects in the 3
year course. One guide book might cost Rs. 50/-
5—There is plenty of copying in the examinations. But a doctor need not
resort to it. I never did so throughout my life, as a matter of principle. Again, principles are personal choices. [I believe copying is meant for dullards, fools and cheats. Doctors are none of these].
6—Once you pass LL.B., passing LL.M., if you wish, is easy because there are distance learning courses for LL.M.
-- M C Gupta
QUESTION—Is it possible for a doctor in private practice to get an LL.B. degree?*
ReplyDelete*ANSWER*— Yes. It is possible.
1—First, let it be clear that the studies for LL.B. degree are not difficult. If somebody wants to top in the university, yes, he would have to work very hard. However, to get ordinary marks is not difficult at all,
especially for a person having an MBBS degree.
2—Second, let it be clear that as per law, an LL. B. student needs to have only 66% attendance.
3—LL.B. cannot be done through correspondence course.
4—Doing LL.B. through evening college should not be a problem, as a little calculation would show:
--Often it is a 5 day week in a law college for students. There are many holidays etc., plus strikes as in any university, plus two months’ vacation plus preparatory holidays before examinations plus 2-3 days between two
papers during 3-4 weeks long examinations. Multiply the actual class days by 0.66 and you may have, say, 150 mandatory class days, including examination days, in a year, usually Monday to Friday.
--Total days in a year= 365
Saturdays, Sundays, available for the clinic = 104
Remaining days = 365-104 = 261
Total class days = 150
Subtracting these from 261, we get 261-150 = 111
Thus if a doctor honestly attends evening LL.B. classes on 150 days in a year, he can still be resent in the clinic on 104+111 = 215 days in a year,.
-Add a bit of common dishonesty in colleges [proxy attendance] in respect of 1/3 of the 150 days. You get 50 days more. So, you can have the clinic on 265 days in a year, which means 5 days a week. You may declare Monday and
Thursday off from the clinic [or, some doctor colleague can see patients on those days and the clinic may never close.
[If you let the students and teachers know that you are a doctor, you will be surprised to know how willing both of them would be to mark proxy
attendance for you!]
In my case, I did not miss a single class and did not tell anybody that Iwas a doctor. But, you need not be like me.
CONTd ...
4—There are some law colleges which, for a consideration, are willing to mark your attendance etc. and you may get the examination roll number / entrance card without attending any classes. You can certainly study the
ReplyDeleteguide books commonly available and secure 60% marks even by studying those books well. Each guide book is about 100 pages, one for each paper, and carries solved questions from previous years. There are 30 subjects in the 3
year course. One guide book might cost Rs. 50/-
5—There is plenty of copying in the examinations. But a doctor need not
resort to it. I never did so throughout my life, as a matter of principle. Again, principles are personal choices. [I believe copying is meant for dullards, fools and cheats. Doctors are none of these].
6—Once you pass LL.B., passing LL.M., if you wish, is easy because there are distance learning courses for LL.M.
-- M C Gupta
*QUESTION—I am a doctor aged 45 years. I want to join LL.B. course. Is it possible in view of my age?*
ReplyDelete*ANSWER—*
1—Your decision is commendable. The present position, to my knowledge, is as follows.
2-- Early this year, BCI brought in a resolution setting age limit of 20 for
admission to five year LLB and that of 30 for the three year LLB course. This step was taken, ostensibly, in the interest of high standards of legal education and practice.
3--. In the late nineties, Delhi Bar Council had made a rule that people could not enroll as advocates after 40 years age. This was challenged in Delhi High Court and was quashed.
4—Lawyers, as a community, tend to be exclusive and want to prevent others from joining the bar. This is an unhealthy trend. This will, ultimately, result in further deterioration of the law profession itself. No branch of
knowledge can grow in exclusion. Inter-disciplinary growth in various fields
needs to be encouraged.
5-- I don't know why lawyers are so afraid of "others" encroaching upon their "territory"? Why do they want to build exclusive monopolistic empires? Is the present fleecing and loot of the public not enough?
6-- I am an ex-professor of medicine having an LL.M. degree. I joined the Bar in 2001. My specialty is medico-legal cases. I have been pretty successful and am fulfilling a need which is beyond an ordinary advocate. So
many people keep on sending me medico-legal queries and I keep on replying to them on the internet as a part of service to the society.
7--What I am doing in law related to medicine can be done by others as regards law related to engineering, commerce and other specialised fields. The interdisciplinary growth of law needs to be encouraged. I deplore the
stand of the BCI.
8--The attempts by the Bar Council of India to limit the age for joining the LL.B. course are ridiculous. The attempts have been challenged:
CONTD ...
a-- A PIL has been filed in the Bombay High Court challenging the Bar Council of India Rule (Rule 28) that states that no person shall be admitted to a 5 year LLB course if he or she is above the age of 20 and to a 3 year LLB course if above the age of 30. It has been filed by Yasmin Tavaria, a practicing advocate. According to her: “commitment to the profession and age can never be inversely related to each other and that the age of a person has no bearing on the degree of commitment with which he or she would pursue a profession.”
ReplyDeleteAccording to advocate Tavaria, Andhra Pradesh High Court last month (May, 2010), hearing a PIL on the same issue, stayed the operation of the BCI rule. As a result, all the colleges in the country can give admissions
notwithstanding the rule, Tavaria said.
b-- Advocate Mahesh Vaswani has filed a Writ Petition in the Bombay High Court on behalf of his client Shabnam Amin Mulani, a lady cop of Mumbai Police against the newly imposed age restrictions in legal education. He has written:
For those who need correct info on the age bar on Law studies, may get in touch with me.
My email id is mavaswani@gmail.com
Shabnam was denied admission on the basis of her age which is more than 30.
c—An Andhra Pradesh state governmental order prescribing the age bar as per the BCI rule was quashed by the AP High Court earlier this year, as per a news item dated 29 March 2010, which can be viewed below:
http://www.minglebox.com/article/ritad5930/lawcet-will-have-no-age-bar/data-0001-fdbffe7327a4877c0127a9e16e5145b6
9-- The Supreme Court has recently transferred to itself the 60 odd cases in various high courts regarding the age of entry to the LL.B. course.
CONTD ...
10-- The Commissioner for Entrance Examinations, Kerala has invited applications from candidates for the entrance test to be held on 14th August for admission to the three year LLB course at Government Law Colleges,
ReplyDeleteTrivandrum, Ernakulam, Thrissur and Kozhikode. There is no upper age limit for admission to the 3 year LL.B Course.**
The full news / notification inviting applications can be viewed at http://www.kerala365.com/education/admission-to-the-3-year-llb-course-entrance-on-august-14/
11—SUMMARY: The BCI rule regarding age limit for admission to LL.B. is flawed. It has been challenged through about 60 writ petitions in various High Courts. Andhra Pradesh High Court has stayed the BCI rule. The Supreme
Court has recently transferred all the High Court petitions on this issue to itself. Many universities are going ahead with LL.B. admissions ignoring the new BCI rule.
-- M C Gupta
MD (Medicine), LL.M.
Ex-Professor and Dean
Practicing advocate
mcgupta44@gmail.com
QUESTION—I am an advocate. Autopsy done on an old man revealed no external or internal injuries. Subarachnoid hemorrhage was found. There was history of hypertension. The prosecution alleges that he died during fight. What is your opinion?***
ReplyDelete*ANSWER—*
1—No opinion can be given without having a look at the documents including the autopsy report. Even the opinion of a forensic medicine specialist might help.
2—On the data given, it appears that the death was due to subarachnoid hemorrhage. Absence of injuries suggests that the hemorrhage was
spontaneous, especially in view of his high blood pressure.
3—If there was a fight, it could have contributed to the hemorrhage because it is known that blood pressure can rise during a fight and the chance of hemorrhage is thereby increased.
-- M C Gupta
MD (Medicine), LL.M.
QUESTION—
ReplyDeletea—Why is one not permitted to practise any other profession along with law?
b—Can a doctor practice medicine, surgery, paediatrics, gynaecology, and ophthalmology at the same time if he has specialist qualifications in all these fields?
ANSWER:
a—One cannot practice both law and medicine simultaneously in view of the Supreme Court judgment in (Dr.) Haniraj L. Chulani Versus Bar Council of Maharashtra and Goa, decided on . 8.4.1996 by A.M. Ahmadi, CJI, S.B.
Majmudar and Mrs. Sujata V. Manohar, JJ.
The issue before the court was—“Whether the respondent-State Bar Council of Maharashtra & Goa was justified in refusing enrolment of the appellant as an advocate under the Advocates Act, 1961 as he is a medical practitioner who
does not want to give up his medical practice but wants simultaneously to practice law.”
The court answered in the affirmative.
You may read the judgment to understand the mind of the court and the legal reasoning involved.
b—Yes. There is no bar.
-- M C Gupta
*QUESTION— I understand that if a doctor has an LLB degree and wants to join the bar, he should comply with the following:*
ReplyDelete*a—Supreme Court judgment in Dr. Haniraj Chulani case;*
*b—Rule 49 of **of Bar Council of India Rules, Part VI, Chapter II*
* *Suppose an assistant professor of forensic medicine having part time teaching job involving only giving a few lectures a week and no medical duties applies to the Bar Council for enrolment, will he be enrolled as an
advocate?*
*ANSWER--***
a—In a way, the Supreme Court did not lay down any new law in (Dr.) Haniraj L. Chulani Versus Bar Council of Maharashtra and Goa, decided on 8.4.1996. It merely upheld the validity of Rule (1) made by the State Bar Council of Maharashtra & Goa, which reads—"1. A person who is otherwise qualified to be admitted as an Advocate but is either in full or part time
service or employment or is engaged in any trade, business or profession shall not be admitted as an Advocate”. It may be noted that while the Bar Council of India Rules are general rules, the Supreme Court has clarified in the quoted judgment that a person desirous of being enrolled in the bar has to apply to the state bar Council and his enrollment is subject to its rules. You may note that the rule (1) quoted above includes the words
“either in full or part time service”.
b—Thus you must find out from your own state bar council what their rules are and you must abide by them.
c—Based upon my experience of bar councils and lawyers, my own hunch is that your bar council will try to declare you ineligible. However, your case seems to be a borderline case and may be arguable in your favour in the court in case the state council refuses.
-- M C Gupta
MD (Medicine), LL
QUESTION—** What are the** rules regarding maintenance of a medico-legal register in the casualty of a private hospital?*
ReplyDelete*ANSWER—*
A--There is no reason why the maintenance of a medico-legal register should differ in government or private hospitals.
B--The following guidelines are given in the the “Hospital Manual” published in 2002 by the Directorate General of Health Services, MOHFW, GOI, in chapter 12 titled “Medical Record Services”.
1—All ML papers must be stamped “MLC”
2—While giving the number in the MLC register, a prefix be added depending upon the casualty handling the case (for example: MC/no. for main casualty; GC/no. for gynae casualty, etc.)
3—All the pages of the MLC register must be numbered and a certificate to that effect must be there from the in-charge of that casualty before starting that ML register.
4—CMO will keep in his / her custody the current ML register under lock and key and will hand it over to the relieving CMO. Both will make suitable endorsement in the register kept for this purpose of their handing-taking
over.
5—Two copies of MLC report shall be prepared (three in case of suspected poisoning). The original will be handed over to the concerned police officer and the duplicate will be kept in safe custody.
6—The CMO who first examines the case is responsible for completing and handing over the MLC report within 48 hours to the police. Preliminary or interim report should not be given to anyone.
7—All the columns in the MLC forms must be properly filled in and mention must be made about: proper identification marks; consent; brief history; general physical examination; specific comments like nature and age of injuries, type of weapon used, nature of poisoning suspected, investigations advised
and material preserved and handed over to the police.
8—The radiological report should be attached with the relevant ML papers.
9—In cases of persons brought dead to the casualty, MLC register must be filled in and, after informing the police, the body, with proper identification tags, be shifted to mortuary with a request duly signed and
stamped by CMO.
10—When the MLC register is complete / full, it should be sent to the medical record section for safe keeping.
M C Gupta
QUESTION—** What are the** rules regarding maintenance of a medico-legal register in the casualty of a private hospital?*
ReplyDelete*ANSWER—*
A--There is no reason why the maintenance of a medico-legal register should differ in government or private hospitals.
B--The following guidelines are given in the the “Hospital Manual” published in 2002 by the Directorate General of Health Services, MOHFW, GOI, in chapter 12 titled “Medical Record Services”.
1—All ML papers must be stamped “MLC”
2—While giving the number in the MLC register, a prefix be added depending upon the casualty handling the case (for example: MC/no. for main casualty; GC/no. for gynae casualty, etc.)
3—All the pages of the MLC register must be numbered and a certificate to that effect must be there from the in-charge of that casualty before starting that ML register.
4—CMO will keep in his / her custody the current ML register under lock and key and will hand it over to the relieving CMO. Both will make suitable endorsement in the register kept for this purpose of their handing-taking
over.
5—Two copies of MLC report shall be prepared (three in case of suspected poisoning). The original will be handed over to the concerned police officer and the duplicate will be kept in safe custody.
6—The CMO who first examines the case is responsible for completing and handing over the MLC report within 48 hours to the police. Preliminary or interim report should not be given to anyone.
7—All the columns in the MLC forms must be properly filled in and mention must be made about: proper identification marks; consent; brief history; general physical examination; specific comments like nature and age of injuries, type of weapon used, nature of poisoning suspected, investigations advised
and material preserved and handed over to the police.
8—The radiological report should be attached with the relevant ML papers.
9—In cases of persons brought dead to the casualty, MLC register must be filled in and, after informing the police, the body, with proper identification tags, be shifted to mortuary with a request duly signed and
stamped by CMO.
10—When the MLC register is complete / full, it should be sent to the medical record section for safe keeping.
M C Gupta
QUESTION—** What are the** rules regarding maintenance of a medico-legal register in the casualty of a private hospital?*
ReplyDelete*ANSWER—*
A--There is no reason why the maintenance of a medico-legal register should differ in government or private hospitals.
B--The following guidelines are given in the the “Hospital Manual” published in 2002 by the Directorate General of Health Services, MOHFW, GOI, in chapter 12 titled “Medical Record Services”.
1—All ML papers must be stamped “MLC”
2—While giving the number in the MLC register, a prefix be added depending upon the casualty handling the case (for example: MC/no. for main casualty; GC/no. for gynae casualty, etc.)
3—All the pages of the MLC register must be numbered and a certificate to that effect must be there from the in-charge of that casualty before starting that ML register.
4—CMO will keep in his / her custody the current ML register under lock and key and will hand it over to the relieving CMO. Both will make suitable endorsement in the register kept for this purpose of their handing-taking
over.
5—Two copies of MLC report shall be prepared (three in case of suspected poisoning). The original will be handed over to the concerned police officer and the duplicate will be kept in safe custody.
CONtd ...
6—The CMO who first examines the case is responsible for completing and handing over the MLC report within 48 hours to the police. Preliminary or interim report should not be given to anyone.
ReplyDelete7—All the columns in the MLC forms must be properly filled in and mention must be made about: proper identification marks; consent; brief history; general physical examination; specific comments like nature and age of injuries, type of weapon used, nature of poisoning suspected, investigations advised
and material preserved and handed over to the police.
8—The radiological report should be attached with the relevant ML papers.
9—In cases of persons brought dead to the casualty, MLC register must be filled in and, after informing the police, the body, with proper identification tags, be shifted to mortuary with a request duly signed and
stamped by CMO.
10—When the MLC register is complete / full, it should be sent to the medical record section for safe keeping.
M C Gupta
QUESTION—** A medico-legal patient died in our hospital. While the body was being shifted to the mortuary, the relatives forcibly took away the body before the police could arrive. *
ReplyDelete*a—What steps should be taken by the hospital during such an episode?
b—What are the legal implications for the Hospital?*
*ANSWER—*
a—The incident reveals that a crime was committed within the hospital premises. The crime consisted of destruction / attempt at destruction of evidence in a legal case. The hospital authorities should carry out a quick
inquiry and on the basis of the same, prepare a formal complaint and lodge it with the police under acknowledgement.
b—There are no legal implications for the hospital except that it should co-operate with the police during the course of investigations in connection with the complaint lodged.
M C Gupta
MD (Medicine), LL.M.
Ex-Professor and Dean
Practicing advocate
mcgupta44@gmail.com
QUESTION—Is a non-medical person having the degree of MSC in biochemistry or microbiology competent to sign the laboratory test reports issued to patients? Will it make a difference if the person concerned has been
ReplyDeleteteaching these subjects in a medical college?*
*ANSWER—*
This question has been decided by the courts as follows:
*1--* In Smt. Kamla Patel vs State of M.P. And Ors., decided 13/1/2003, a single bench of the MP High Court held in para 9 of the judgment as follows:
“The issue of unqualified person running the pathology lab, came up before the M.P. Medical Council constituted under the provisions of M.P. Ayurvigyan Parishad Adhiniyam and on query being raised by the Indian Medical
Association Indore Branch the council has clearly specified that only those persons can be termed as qualified pathologist who possess a duly recognized degree/diploma in pathology and duly registered with the M.P. Medical
Council Bhopal under Section 13 of the M.P. Ayurvigyan Parishad Adhiniyam. The council has also informed that persons holding any other degree for example M.Sc. Microbiology and Biochemistry cannot run pathology lab. The
council has further clarified that no migrated doctor can practice in the State of M.P. unless and until he gets himself registered with the M.P. Medical Council, Bhopal. The council has specifically stated that diploma in medical lab. Technology is the qualification of lab. Technician and therefore such person cannot practice as pathologist and run clinical
pathology lab.”
2—In Smt. Kamla Patel & Ors. vs State Of M.P. And Ors., decided 11/4/2007, a division bench of the MP High Court held in para 12 of the judgment as follows:
“Since we have held that pathology is a branch of medicine a person who is not registered in the State Medical Register as a medical practitioner, cannot practice in pathology and cannot sign any certificate or report relating to pathology.”
3-- The Bombay High Court in its interim order dated 10 October 2007 in Public Interest Litigation No.28 of 2005 titled as Dr. Pratap Sitaram Patil & Ors. .. Vs. State of Maharashtra & Ors., held as follows:
CONTd ...
“4. On going through the affidavit in reply filed by respondent no.3 and 4, this court is prima facie satisfied that the holder of DMLT (Diploma Lab Technique) is not entitled to practice in pathology and makes them eligible
ReplyDeleteand qualifies for being employed as technicians in a Pathologist’s Laboratory. Therefore, there will be an interim order in terms of prayer clause (c) and (d) to be read in this context and if persons holding DMLT or other equivalent qualification are running a pathological laboratory, they should appoint a qualified pathologist as recognised by the Maharashtra Medical Council and Medical Council of India
to certify their reports for want of which they cannot be permitted to practice as such.”
4—It is thus clear that non-medical persons, even if having the degree of MSC in biochemistry or microbiology, cannot sign the laboratory test reports issued to patients. The position cannot change if they have been teaching in a medical college.
M C Gupta
MD (Medicine), LL.M.
Ex-Professor and Dean
Practicing advocate
mcgupta44@gmail.com
Will students suffer if their medical college is involved in bribe at the MCI level? *
ReplyDeleteQUESTION—Large scale corruption by way of bribes for sanctioning medical colleges and capitation fee from students is well known. Both bribe and capitation fee are illegal. Is there any risk to students already studying
in such situations?
ANSWER—No. There is no risk.
a—If a substandard medical college, recognised through bribery, is dercognised later, the admission of the students cannot be cancelled. They will continue and get a valid degree from the university concerned.
b—The admission of a student already studying cannot be cancelled merely because he paid capitation fee.
M C Gupta
MD (Medicine), LL.M.
QUESTION—Can medical and non-medical faculty members of departments of biochemistry or microbiology be treated at par as regards competence to sign a laboratory test reports meant for patients? If not, why? Would such
ReplyDeletefaculty members be competent to start their own private laboratories for this purpose? *
ANSWER—*
A—It is necessary to appreciate what is the true nature of the “laboratory test report” mentioned above. It is undoubtedly a clinical
laboratory test or a medical laboratory test. The laboratory carrying out such test would be called a medical laboratory. The persons working in such a laboratory may have qualifications like the following:
DMLT [ Diploma in Medial Laboratory Technology]
BSC [Medial Laboratory Technology]
BSc, MSc or PhD in biochemistry or microbiology
B-- A clinical laboratory test is defined in the Concise Dictionary of Modern Medicine. © 2002, published by The McGraw-Hill Companies, Inc., as follows: “the term clinical laboratory test is a generic term for any test regarded as having value in assessing health or disease states”. This would mean that clinical pathology, clinical biochemistry, clinical microbiology are all parts of laboratory medicine. As a matter of fact, the AIIMS has a
department titled as “Department of laboratory medicine”. There are a large number of private laboratories carrying out such tests. These laboratories routinely engage persons having a qualification like DMLT. Such laboratories
are often referred to as pathological laboratories. The terms pathological
laboratory, medical laboratory and clinical laboratory mean one and the same thing. In India, the commonest name given to such laboratories is a pathological laboratory. Thus the term pathological laboratory means a
laboratory where laboratory tests related to one or more of the following disciplines are carried out: clinical pathology; clinical or medical biochemistry; clinical or medical microbiology; histopathology.
CONTd ..
C—Courts have adjudicated upon the question—“Whether persons not having a medical degree are competent to sign a pathological report or independently run a pathology laboratory”. They have answered in the negative. Excerpts
ReplyDeletefrom some judgments are given below:
*1--* In Smt. Kamla Patel vs State of M.P. And Ors., decided 13/1/2003, a single bench of the MP High Court held in para 9 of the judgment as follows:
“The issue of unqualified person running the pathology lab, came up before the M.P. Medical Council constituted under the provisions of M.P. Ayurvigyan Parishad Adhiniyam and on query being raised by the Indian Medical Association Indore Branch the council has clearly specified that only those persons can be termed as qualified pathologist who possess a duly recognized degree/diploma in pathology and duly registered with the M.P. Medical Council Bhopal under Section 13 of the M.P. Ayurvigyan Parishad Adhiniyam. The council has also informed that persons holding any other degree for example M.Sc. Microbiology and Biochemistry cannot run pathology lab. The council has further clarified that no migrated doctor can practice in the State of M.P. unless and until he gets himself registered with the M.P.
Medical Council, Bhopal. The council has specifically stated that diploma in medical lab. Technology is the qualification of lab. Technician and therefore such person cannot practice as pathologist and run clinical
pathology lab.”
2—In Smt. Kamla Patel & Ors. vs State Of M.P. And Ors., decided 11/4/2007, a division bench of the MP High Court held in para 12 of the judgment as follows:
“Since we have held that pathology is a branch of medicine a person who is not registered in the State Medical Register as a medical practitioner, cannot practice in pathology and cannot sign any certificate or report relating to pathology.”
3-- The Bombay High Court in its interim order dated 10 October 2007 in Public Interest Litigation No.28 of 2005 titled as Dr. Pratap Sitaram Patil & Ors. .. Vs. State of Maharashtra & Ors., held as follows:
CONTd ...
“4. Ongoing through the affidavit in reply filed by respondent no.3 and 4, this court is prima facie satisfied that the holder of DMLT (Diploma Lab Technique) is not entitled to practice in pathology and makes them eligible
ReplyDeleteand qualifies for being employed as technicians in a Pathologist’s Laboratory. Therefore, there will be an interim order in terms of prayer clause (c) and (d) to be read in this context and if persons holding DMLT or other equivalent qualification are running a pathological laboratory, they should appoint a qualified pathologist as recognised by the Maharashtra Medical Council and Medical Council of India
to certify their reports for want of which they cannot be permitted to practice as such.”
D—It is clear that the courts have made no exception for those who are teaching or have taught biochemistry or microbiology to medical students in a medical college. They remain non-medical persons. It is thus clear that non-medical persons, even if having the degree of MSC or PhD in biochemistry or microbiology, cannot sign the laboratory test reports issued to patients.
E—It is clear that such non-medical persons would not be legally competent to independently run a medical laboratory or to sign reports. They would have to employ a medical person having a necessary qualification in terms of
the Indian Medical Council Act, 1956. In terms of this Act, the necessary qualification for this purpose is a recognised postgraduate medical qualification in pathology. This has been pleaded in the courts by the MCI and this view has been accepted by the courts.
F—The courts have further held that if a pathologist merely signs a report prepared by a laboratory run by a non-medical person, this is not enough for the purpose of law. He must actually observe / supervise the way the test is
done. [However, this observation was made by the courts in the context of DMLT persons were running the laboratory and carrying out the tests. I think that if a case comes up in a court regarding former faculty members of
biochemistry or microbiology running private laboratories, the courts may agree that their working in the laboratory need not be supervised by a pathologist. However, such persons would still not be competent to sign the
reports.
M C Gupta
QUESTION—What is the difference between DOR, DAMA, LAMA, and absconding.*
ReplyDelete*ANSWER—*
A--DOR means “Discharged on request”. It would mean that the patient requested to be discharged and the doctor discharged him. Here the doctor does not commit any illegality. As a matter of fact, very often patients are
routinely discharged on request and, mostly, such discharges are not against medical advice. Hence DOR is not really a good term to use.
The use of the term DOR may potentially lead to complications later:
a—If the condition deteriorates or the patient dies later, the relatives may say that they never made any request for discharge but the doctor wrote DOR on his own for ulterior motives. [A common ulterior motive alleged may be that the doctor wanted to make a bed available for his own relative or from
somebody from whom he had received illegal gratification. This is more likely to happen in government hospitals]. The opposite counsel would argue that there was no request at all.
b-- If the condition deteriorates or the patient dies later, the relatives may say that they made the request because, as laymen, they thought that the patient’s condition had sufficiently improved, but, the doctor being an
expert, should have known that the patient was not fit for discharge and should have explained the gravity and the risks involved in discharge. They can allege that their request was natural and understandable but the
doctor’s behavior was not; he should have informed them about the adverse possibilities.
The opposite counsel would argue that even though there was a request, it was not an informed request. He would plead that the doctor acted mechanically and did not apply his mind. He would say that just as an informed consent is extreme importance in law, similarly there must be an informed discharge. He would allege that the doctor failed in his duty.
c—If there are unpaid dues and the hospital asks for the dues later, the patient / relatives are likely to say that they had paid all dues in cash and the hospital did not give a receipt.
CONTd ...
PRACTICAL ADVICE—
ReplyDeletei—The doctor should ask the patient or the relatives to submit a written request for discharge.
ii—Such request should contain two declarations as follows:
ONE, that it has been explained to them that the discharge at this stage is not advisable and is risky and that they have understood the risk;
TWO, that they have paid or promise to pay all dues before leaving the hospital.
iii—It is better that the DOR certificate should be signed by two doctors and countersigned by the patient / relative and should contain, if applicable, a statement that: “Dues not paid. The patient promises to pay within a week”.
B--DAMA means “Discharged against medical advice”. It would mean that the patient requested to be discharged and the doctor told him that it was such discharge was not medically advisable.
The “PRACTICAL ADVICE” given above applies here also.
C-- LAMA means “Left against medical advice”. It would mean that the patient wanted to be discharged from the hospital but was advised against it but still decided to go. In such a situation, it is a common practice in
hospitals not to give a detailed discharge slip to the patient which may contain necessary clinical details. This is a wrong practice. No patient can be forcibly kept in a hospital, even for his own benefit. He must be
discharged when he makes such a request. In that case, proper discharge slip should be given on which it may be written that he was discharged on request. It would then be a case of DOR.
Ideally, there should be very few LAMA cases in a hospital. Most of the so called LAMA cases should have been DOR cases. The term LAMA should apply to only those cases who decide to leave in a hurry or huff or in bad temper and
leave at once at very short notice, without giving time to the staff to explain the risks involved and to prepare a detailed proper discharge slip. In such cases, it is better to take the following steps:
i—It should be clearly written in the case sheet, under signatures of two doctors, that the patient took a sudden and precipitate decision to leave and even did not give time to the staff to prepare a detailed discharge slip
and hence the patient was declared LAMA.
ii—After the patient has thus left in a hurry, the doctors should still prepare a proper discharge slip and keep it in the case sheet and give a copy to the patient if he turns up later and wants the same. Treating a
patient and not giving, even when requested later, a proper discharge slip containing a summary of the hospital stay and diagnosis etc. would be an illegal act on the part of the hospital.
CONTd ...
PRACTICAL ADVICE—
ReplyDeletei—The doctor should ask the patient or the relatives to submit a written request for discharge.
ii—Such request should contain two declarations as follows:
ONE, that it has been explained to them that the discharge at this stage is not advisable and is risky and that they have understood the risk;
TWO, that they have paid or promise to pay all dues before leaving the hospital.
iii—It is better that the DOR certificate should be signed by two doctors and countersigned by the patient / relative and should contain, if applicable, a statement that: “Dues not paid. The patient promises to pay within a week”.
B--DAMA means “Discharged against medical advice”. It would mean that the patient requested to be discharged and the doctor told him that it was such discharge was not medically advisable.
The “PRACTICAL ADVICE” given above applies here also.
C-- LAMA means “Left against medical advice”. It would mean that the patient wanted to be discharged from the hospital but was advised against it but still decided to go. In such a situation, it is a common practice in
hospitals not to give a detailed discharge slip to the patient which may contain necessary clinical details. This is a wrong practice. No patient can be forcibly kept in a hospital, even for his own benefit. He must be
discharged when he makes such a request. In that case, proper discharge slip should be given on which it may be written that he was discharged on request. It would then be a case of DOR.
Ideally, there should be very few LAMA cases in a hospital. Most of the so called LAMA cases should have been DOR cases. The term LAMA should apply to only those cases who decide to leave in a hurry or huff or in bad temper and
leave at once at very short notice, without giving time to the staff to explain the risks involved and to prepare a detailed proper discharge slip. In such cases, it is better to take the following steps:
CONTd ...
i—It should be clearly written in the case sheet, under signatures of two doctors, that the patient took a sudden and precipitate decision to leave and even did not give time to the staff to prepare a detailed discharge slip
ReplyDeleteand hence the patient was declared LAMA.
ii—After the patient has thus left in a hurry, the doctors should still prepare a proper discharge slip and keep it in the case sheet and give a copy to the patient if he turns up later and wants the same. Treating a patient and not giving, even when requested later, a proper discharge slip containing a summary of the hospital stay and diagnosis etc. would be an
illegal act on the part of the hospital.
D—“ABSCONDED”: This is a serious event calling for urgent steps.
a--“Absconded” means that the patient has left the hospital without permission or information and is not traceable within the hospital premises. This is a very serious situation and calls for immediate information to the
police and the relatives. The duty of the treating doctor is to inform the medical superintendent / hospital administration urgently. The administration should, without delay, inform the police after necessary
inquiry etc.
b-- If the police is not immediately informed, complications can occur, such as the following:
i—The patient is in the custody of the hospital. If anything in custody is found to be missing from the custody of the custodian, the latter is liable. Thus the relatives would be fully justified in suing the hospital for
deficiency of service if the patient is missing from their custody. This would imply lax custody.
ii—If a sick person in hospital custody is missing from custody and the hospital takes no action and the person is traced later in a serious condition, the hospital would be liable for negligence because it is the duty of the hospital to take all necessary steps to treat disease and to prevent its deterioration.
iii—If the absconding patient commits suicide, the hospital / doctors can be sued for abetment to suicide. [Though, in practice, the courts may let them off lightly].
iv-- If the absconding patient meets an accident and dies, there may be insurance claims [life insurance policy claim; health insurance policy claim; accident insurance policy claim etc.]; compensation claims
[compensation awarded by the Motor Accidents Claims Tribunal, MACT], consumer claims or claims awarded through other legal mechanisms. All these would usually necessitate an FIR and may even have the hospital as a party.
v-- If the absconding patient commits some crime, and the police has not been informed, the police may like to implicate the hospital / doctor also. I think the police would be justified in doing so.
SUMMARY—DOR and DAMA are almost synonymous. It is better [and safer for the hospital] to use the term DAMA rather than DOR. The term LAMA should be used only in the circumstances explained. When the patient is ABSCONDING, this is a legal emergency and the police and the relatives should be informed urgently through the hospital administration.
M C Gupta
i—It should be clearly written in the case sheet, under signatures of two doctors, that the patient took a sudden and precipitate decision to leave and even did not give time to the staff to prepare a detailed discharge slip
ReplyDeleteand hence the patient was declared LAMA.
ii—After the patient has thus left in a hurry, the doctors should still prepare a proper discharge slip and keep it in the case sheet and give a copy to the patient if he turns up later and wants the same. Treating a patient and not giving, even when requested later, a proper discharge slip containing a summary of the hospital stay and diagnosis etc. would be an
illegal act on the part of the hospital.
D—“ABSCONDED”: This is a serious event calling for urgent steps.
a--“Absconded” means that the patient has left the hospital without permission or information and is not traceable within the hospital premises. This is a very serious situation and calls for immediate information to the
police and the relatives. The duty of the treating doctor is to inform the medical superintendent / hospital administration urgently. The administration should, without delay, inform the police after necessary
inquiry etc.
b-- If the police is not immediately informed, complications can occur, such as the following:
i—The patient is in the custody of the hospital. If anything in custody is found to be missing from the custody of the custodian, the latter is liable. Thus the relatives would be fully justified in suing the hospital for
deficiency of service if the patient is missing from their custody. This would imply lax custody.
ii—If a sick person in hospital custody is missing from custody and the hospital takes no action and the person is traced later in a serious condition, the hospital would be liable for negligence because it is the duty of the hospital to take all necessary steps to treat disease and to prevent its deterioration.
iii—If the absconding patient commits suicide, the hospital / doctors can be sued for abetment to suicide. [Though, in practice, the courts may let them off lightly].
iv-- If the absconding patient meets an accident and dies, there may be insurance claims [life insurance policy claim; health insurance policy claim; accident insurance policy claim etc.]; compensation claims
[compensation awarded by the Motor Accidents Claims Tribunal, MACT], consumer claims or claims awarded through other legal mechanisms. All these would usually necessitate an FIR and may even have the hospital as a party.
CONTd ...
i—It should be clearly written in the case sheet, under signatures of two doctors, that the patient took a sudden and precipitate decision to leave and even did not give time to the staff to prepare a detailed discharge slip
ReplyDeleteand hence the patient was declared LAMA.
ii—After the patient has thus left in a hurry, the doctors should still prepare a proper discharge slip and keep it in the case sheet and give a copy to the patient if he turns up later and wants the same. Treating a patient and not giving, even when requested later, a proper discharge slip containing a summary of the hospital stay and diagnosis etc. would be an
illegal act on the part of the hospital.
D—“ABSCONDED”: This is a serious event calling for urgent steps.
a--“Absconded” means that the patient has left the hospital without permission or information and is not traceable within the hospital premises. This is a very serious situation and calls for immediate information to the
police and the relatives. The duty of the treating doctor is to inform the medical superintendent / hospital administration urgently. The administration should, without delay, inform the police after necessary
inquiry etc.
b-- If the police is not immediately informed, complications can occur, such as the following:
i—The patient is in the custody of the hospital. If anything in custody is found to be missing from the custody of the custodian, the latter is liable. Thus the relatives would be fully justified in suing the hospital for
deficiency of service if the patient is missing from their custody. This would imply lax custody.
ii—If a sick person in hospital custody is missing from custody and the hospital takes no action and the person is traced later in a serious condition, the hospital would be liable for negligence because it is the duty of the hospital to take all necessary steps to treat disease and to prevent its deterioration.
iii—If the absconding patient commits suicide, the hospital / doctors can be sued for abetment to suicide. [Though, in practice, the courts may let them off lightly].
CONTd ...
iv-- If the absconding patient meets an accident and dies, there may be insurance claims [life insurance policy claim; health insurance policy claim; accident insurance policy claim etc.]; compensation claims
ReplyDelete[compensation awarded by the Motor Accidents Claims Tribunal, MACT], consumer claims or claims awarded through other legal mechanisms. All these would usually necessitate an FIR and may even have the hospital as a party.
v-- If the absconding patient commits some crime, and the police has not been informed, the police may like to implicate the hospital / doctor also. I think the police would be justified in doing so.
SUMMARY—DOR and DAMA are almost synonymous. It is better [and safer for the hospital] to use the term DAMA rather than DOR. The term LAMA should be used only in the circumstances explained. When the patient is ABSCONDING, this is a legal emergency and the police and the relatives should be informed urgently through the hospital administration.
M C Gupta
*QUESTION—A doctor becomes a pathologist after studying hard for 9-10 years, but is then frustrated to find that he has to compete with illegal laboratories run by technicians. What can be done?*
ReplyDelete*ANSWER*—I can understand your agony. It is the same situation one faces after getting a degree in MD (Medicine) and then competing with quacks. I have faced it. Running of laboratories by technicians is quackery. There are several high court decisions regarding this.
Theoretically, the solution is easy. Complaints can be made to the police; the medical council; and, the consumer courts under relevant provisions of law. In practice, it is difficult for an individual doctor to do so. Action
should be taken by the association of pathologists or the IMA by engaging a lawyer. Such action will certainly lead to positive results. Unfortunately, I find that collective enthusiasm on the part of doctors is lacking. Lack of unity is what ails doctors. The proposed Clinical Establishments Bill, 2010,
can help in curbing this and other types of quackery. Doctors should welcome this bill (minus its repugnant provisions—especially section 12, clause 2).
M C Gupta
MD (Medicine), LL.M.
Can a Consumer Commission punish a doctor for alleged negligence when there was no contract for service? *
ReplyDelete*QUESTION—What are your comments about the recent decision of the Delhi State Consumer Commission whereby a private doctor has been fined Rs. 3 lakh for not attending to an injured person outside his door?*
* *
*ANSWER—*
1—As per the statement of the doctor concerned, to whom I have talked on phone, the facts are that he is a 52 years old senior doctor. He is an MD in pediatrics. He is a heart patient himself and has already undergone a
cardiac bypass surgery. In September 2005, while he was attending to his patients in his clinic, he heard some commotion and on opening the clinic door, he found that an injured person was being taken to a hospital which
was situated just two houses next to his clinic, where he was brought dead.
The widow filed a complaint in the Janak Puri District Forum against the doctor and the hospital. The Forum found negligence and imposed a fine of Rs. 2 lakh on him and Rs. 5 lakh on the hospital. Both appealed. There was
no cross appeal by the complainant. The State Commission enhanced the fine against the doctor to Rs. 3 lakh but acquitted the hospital on the ground that patient was brought dead.
2—As per
http://www.hindustantimes.com/StoryPage/Print/576300.aspx the facts are as follows:
a--In 2006, Naik Subedar Gulyani was attacked onboard a bus by a pickpocket and sustained knife wounds on his right thigh. He managed to get down but collapsed outside Manocha’s hospital in Janakpuri. The doctor came out, saw
the profusely bleeding man and went back into his clinic. A couple who had visited him for consultation took the injured to the adjacent Orchid Hospital where he was declared brought dead.
b—The widow filed a complaint before the District Consumer Forum which
imposed a fine of Rs. 3 lakh upon the doctor.
c--The doctor preferred an appeal before the State Commission, which observed: “Instead of moving the injured to hospital, he went back and
closed doors of the clinic. It is not possible to say that a doctor would not have realised the gravity of the situation and not foreseen that continuous bleeding will result in death. The callous indifference of the doctor needs to be denounced in no uncertain terms.”
The doctor’s plea that he was a “private doctor” and had no obligation to treat a person lying outside his clinic was dismissed. The Commission observed, “No amount of compensation is adequate where a life is lost”.
CONTd ...
Can a Consumer Commission punish a doctor for alleged negligence when there was no contract for service? *
ReplyDelete*QUESTION—What are your comments about the recent decision of the Delhi State Consumer Commission whereby a private doctor has been fined Rs. 3 lakh for not attending to an injured person outside his door?*
* *
*ANSWER—*
1—As per the statement of the doctor concerned, to whom I have talked on phone, the facts are that he is a 52 years old senior doctor. He is an MD in pediatrics. He is a heart patient himself and has already undergone a
cardiac bypass surgery. In September 2005, while he was attending to his patients in his clinic, he heard some commotion and on opening the clinic door, he found that an injured person was being taken to a hospital which
was situated just two houses next to his clinic, where he was brought dead.
The widow filed a complaint in the Janak Puri District Forum against the doctor and the hospital. The Forum found negligence and imposed a fine of Rs. 2 lakh on him and Rs. 5 lakh on the hospital. Both appealed. There was
no cross appeal by the complainant. The State Commission enhanced the fine against the doctor to Rs. 3 lakh but acquitted the hospital on the ground that patient was brought dead.
2—As per
http://www.hindustantimes.com/StoryPage/Print/576300.aspx the facts are as follows:
a--In 2006, Naik Subedar Gulyani was attacked onboard a bus by a pickpocket and sustained knife wounds on his right thigh. He managed to get down but collapsed outside Manocha’s hospital in Janakpuri. The doctor came out, saw
the profusely bleeding man and went back into his clinic. A couple who had visited him for consultation took the injured to the adjacent Orchid Hospital where he was declared brought dead.
b—The widow filed a complaint before the District Consumer Forum which
imposed a fine of Rs. 3 lakh upon the doctor.
c--The doctor preferred an appeal before the State Commission, which observed: “Instead of moving the injured to hospital, he went back and
closed doors of the clinic. It is not possible to say that a doctor would not have realised the gravity of the situation and not foreseen that continuous bleeding will result in death. The callous indifference of the doctor needs to be denounced in no uncertain terms.”
The doctor’s plea that he was a “private doctor” and had no obligation to treat a person lying outside his clinic was dismissed. The Commission observed, “No amount of compensation is adequate where a life is lost”.
CONTd ...
Can a Consumer Commission punish a doctor for alleged negligence when there was no contract for service? *
ReplyDelete*QUESTION—What are your comments about the recent decision of the Delhi State Consumer Commission whereby a private doctor has been fined Rs. 3 lakh for not attending to an injured person outside his door?*
* *
*ANSWER—*
1—As per the statement of the doctor concerned, to whom I have talked on phone, the facts are that he is a 52 years old senior doctor. He is an MD in pediatrics. He is a heart patient himself and has already undergone a
cardiac bypass surgery. In September 2005, while he was attending to his patients in his clinic, he heard some commotion and on opening the clinic door, he found that an injured person was being taken to a hospital which
was situated just two houses next to his clinic, where he was brought dead.
The widow filed a complaint in the Janak Puri District Forum against the doctor and the hospital. The Forum found negligence and imposed a fine of Rs. 2 lakh on him and Rs. 5 lakh on the hospital. Both appealed. There was
no cross appeal by the complainant. The State Commission enhanced the fine against the doctor to Rs. 3 lakh but acquitted the hospital on the ground that patient was brought dead.
2—As per
http://www.hindustantimes.com/StoryPage/Print/576300.aspx the facts are as follows:
a--In 2006, Naik Subedar Gulyani was attacked onboard a bus by a pickpocket and sustained knife wounds on his right thigh. He managed to get down but collapsed outside Manocha’s hospital in Janakpuri. The doctor came out, saw
the profusely bleeding man and went back into his clinic. A couple who had visited him for consultation took the injured to the adjacent Orchid Hospital where he was declared brought dead.
b—The widow filed a complaint before the District Consumer Forum which
imposed a fine of Rs. 3 lakh upon the doctor.
CONTd ...
c--The doctor preferred an appeal before the State Commission, which observed: “Instead of moving the injured to hospital, he went back and
ReplyDeleteclosed doors of the clinic. It is not possible to say that a doctor would not have realised the gravity of the situation and not foreseen that continuous bleeding will result in death. The callous indifference of the doctor needs to be denounced in no uncertain terms.”
The doctor’s plea that he was a “private doctor” and had no obligation to treat a person lying outside his clinic was dismissed. The Commission observed, “No amount of compensation is adequate where a life is lost”.
3—In the absence of the actual order of the State Commission, my tentative comment is that the decision of the State Commission is flawed and incorrect for the following reasons:
a—This case simply does not come under the purview of the Consumer Protection Act. The injured was not a consumer of services provided by the doctor. The doctor did not provide any service. There was no contract for service. There was no consideration. The complaint should have been dismissed in limine.
CONTD
b--No doctor anywhere in the world, who does not already have an obligation to treat a person by way of his employment or otherwise, can be sued for refusing treatment, even in an emergency. The classical example I give
ReplyDeleteduring my lectures is that if a national swimming champion is a guest in a hotel and is sipping coffee by the side of the swimming pool, and a two year old boy totters and falls in the pool and dies in front of his eyes, there
is NO law under which he can be sued for not having saved the child. The situation would, of course, be different if he were employed by the hotel as a swimming coach. The difference in the two situations is that in the second
situation, but not in the first, there is a duty of care to save people from drowning. Similarly, if a plain MBBS doctor is sitting in his private clinic and an injured person is brought to him, maybe with multiple fractures and head injury, he has no duty of care towards him till he decides to accept him as a patient and treat him accordingly.
c—It seems that the State Commission has invoked the code of medical ethics laid down by the Medical Council of India while holding the doctor guilty. It appears that the case never came up before the medical council. It was
wrong on the part of the State Commission to sit on judgment over whether the doctor violated the code of ethics. The Commission ought to have referred the case to the MCI for opinion. Even if the MCI held the doctor
guilty of an unethical act, it was for the MCI, not the State Commission, to award the punishment for violation, if any, of the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002.
d-- It seems that the State Commission has wrongly relied upon the Supreme Court’s judgment in Pt. Parmanand Katara Vs. Union of India and Others, decided on 28.08.1989 in Writ Petition (Criminal) No. 270 of 1988, by
Ranganath Misra, G. L. Oza JJ. It is a wrong reading of the judgment that leads one to conclude that a doctor, especially a private doctor in his solo private clinic, that too a pediatrician, is legally bound to treat every
case of roadside injury. As a matter of fact, all that this judgment says is that doctors should not wait for police and legal formalities to be completed before starting treatment of the injured.
CONTD ...
b--No doctor anywhere in the world, who does not already have an obligation
ReplyDeleteto treat a person by way of his employment or otherwise, can be sued for
refusing treatment, even in an emergency. The classical example I give
during my lectures is that if a national swimming champion is a guest in a
hotel and is sipping coffee by the side of the swimming pool, and a two year
old boy totters and falls in the pool and dies in front of his eyes, there
is NO law under which he can be sued for not having saved the child. The
situation would, of course, be different if he were employed by the hotel as
a swimming coach. The difference in the two situations is that in the second
situation, but not in the first, there is a duty of care to save people from
drowning. Similarly, if a plain MBBS doctor is sitting in his private clinic
and an injured person is brought to him, maybe with multiple fractures and
head injury, he has no duty of care towards him till he decides to accept
him as a patient and treat him accordingly.
c—It seems that the State Commission has invoked the code of medical ethics
laid down by the Medical Council of India while holding the doctor guilty.
It appears that the case never came up before the medical council. It was
wrong on the part of the State Commission to sit on judgment over whether
the doctor violated the code of ethics. The Commission ought to have
referred the case to the MCI for opinion. Even if the MCI held the doctor
guilty of an unethical act, it was for the MCI, not the State Commission, to
award the punishment for violation, if any, of the Indian Medical Council
(Professional conduct, Etiquette and Ethics) Regulations, 2002.
CONTD ...
d-- It seems that the State Commission has wrongly relied upon the Supreme Court’s judgment in Pt. Parmanand Katara Vs. Union of India and Others, decided on 28.08.1989 in Writ Petition (Criminal) No. 270 of 1988, by
ReplyDeleteRanganath Misra, G. L. Oza JJ. It is a wrong reading of the judgment that leads one to conclude that a doctor, especially a private doctor in his solo private clinic, that too a pediatrician, is legally bound to treat every
case of roadside injury. As a matter of fact, all that this judgment says is that doctors should not wait for police and legal formalities to be completed before starting treatment of the injured.
e-- It seems to nurture a false belief that the responsibility for the health of the society and the treatment of the sick and the injured lies upon a doctor. While health is a fundamental right, it is the fundamental
right of the citizen against the state, not that of one citizen against another. Incidentally, this same false belief seems to be operating in the mind of the central government which has brought up the *Clinical
Establishment Bill Act, 2010, which has already been passed by the Lok Sabha. *The most offending section of this Bill is Section 12(2), which implicitly imposes a responsibility to provide free emergency treatment,
which may include costly surgery etc., to anybody who comes to a clinical establishment, which included even single doctor outdoor private clinics.
—The remedy available to the doctor is to file a revision petition in the National Commission. I think that if it is pleaded properly, the National Commission will quash the order of the State Commission.
CONTD
5—If the National Commission concurs with the State Commission, this would be a fit case for appeal to the Supreme Court. This will give an occasion to the Supreme Court to clarify its own judgment in Pt. Parmanand Katara case,
ReplyDeletein which the Secretary, Ministry of Health and Family Welfare of the Union of India, the Medical Council of India and the Indian Medical Association had been impleaded as respondents during the course of the proceedings.
4— I think this is a fit case where the IMA should step in immediately on behalf of Dr. Manocha because it is basically a judgment not against him but against the whole medical profession. The IMA should provide, at its cost,
the best legal defence to Dr. Manocha who is most likely a member of the IMA. Alternatively, the IMA should get itself impleaded in future legal proceedings in this case.
5—Dr. Manocha should approach the IMA / DMA for this purpose and should also provide them a copy of the State Commission’s order.
-- M C Gupta
Can a hospital be regarded as a consumer of security services? *
ReplyDelete*QUESTION—A hospital has hired the services of a security agency. **There is deficiency. **The hospital does not want to go to a civil court for relief under the law of contract. Can it file a complaint with the Consumer Forum /
Commission? *
* *
ANSWER—*Yes. It can. There is nothing in the Consumer Protection Act, 1986, against it. This view is supported by the decision of the Haryana State Consumer Commission in Haryana State Electricity Board v. Dinesh Kumar,
decided in 1991.
--M C Gupta
*Records to me maintained by an ultrasound clinic*
ReplyDelete*QUESTION— In the context of the PNDT Act, am I correct in my understanding that:*
*a-- Ultrasound clinic and genetic clinic are two different entities. *
*b-- Ultrasound clinic is required to maintain a register only as per rule 9(1) and genetic clinic is required to maintain record both in the register as well as in Form F as mentioned rule 9(4).*
* **ANSWER—*No.
a—An ultrasound clinic is a genetic clinic as per definition of the genetic clinic given in
Section 2 (d) of the Act.
b— An ultrasound clinic is required to maintain a register and also to fill up Form F. There is no scope for confusion because the title of the form itself says so—
* *“FORM F-- FORM FOR MAINTENANCE OF RECORD IN RESPECT OF PREGNANT WOMAN BY
GENETIC CLINIC/ULTRASOUND CLINIC/IMAGING CENTRE”
-M C Gupta
*QUESTION—A hospital has hired the services of a security agency. There is deficiency. The hospital does not want to go to a civil court for relief under the law of contract. Can it file a complaint with the Consumer Forum /
ReplyDeleteCommission? *
*ANSWER—*Yes, but only in certain cases, as explained below.
a—In order to file a consumer complaint, the person must be a consumer.
b—Who is a consumer is defined in section 2(d) of the Act as follows:
“(d) "consumer" means any person who-
ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised,……………………”
c—Who is a person is defined in section 2(m) as follows:
“m) "person" includes-
(i) a firm whether registered or not;
(ii) a Hindu undivided family;
(iii) a co-operative society;
(iv) every other association of persons whether registered under the Societies Registration Act, 1860 (22 of 1860) or not;”
d—Thus only those hospitals that can be deemed as a “person” as defined above will be covered under the Consumer Protection Act. This may be so in case of small hospitals. Large hospitals, such as those which are owned / run by companies or PSUs, as also the government hospitals, would not be covered under the Act.
The above provision of law has a rationale. The CPA is meant to protect the weak consumers. It is not meant to protect industries. It may be kept in mind that a hospital is an industry as per Supreme Court decisions. Even the
Safdarjung hospital and the AIIMS are, in law, industries.
M C Gupta
*QUESTION—** A medico-legal patient died in our hospital. While the body was being shifted to the mortuary, the relatives forcibly took away the body before the police could arrive. *
ReplyDelete*a—What steps should be taken by the hospital during such an episode?
b—What are the legal implications for the Hospital?*
*ANSWER—*
a—Such an incident can be prevented by making it sure that the police is informed about the death immediately and that death certificate is not issued till the police arrive. It is highly unlikely that anybody would take away a dead body without the death certificate.
b-- The incident reveals that a crime was committed within the hospital premises. The crime consisted of destruction / attempt at destruction of evidence in a legal case. The hospital authorities should carry out a quick
inquiry and on the basis of the same, prepare a formal complaint and lodge it with the police under acknowledgement.
c—There are no legal implications for the hospital except that it should co-operate with the police during the course of investigations in connection with the complaint lodged.
M C Gupta
QUESTION— A patient was brought dead to my hospital. I had never treated him earlier. I cannot ascertain the cause of death with reasonable certainty. The column regarding the cause of death in the prescribed death
ReplyDeletecertificate form has to be filled up by the last attending doctor. So, technically, I can't sign the certificate. What should I do in such a
situation?*
*ANSWER—*
a-- A death has to be notified in terms of Section 10(1) of the Registration of Births And Deaths Act, 1969, which reads:
“10. (1) It shall be the duty of –
(i) the midwife or any other medical or health attendant at a birth or death,
(ii) the keeper or the owner of a place set apart for the disposal of dead bodies or any person required by a local authority to be present at such place, or
(iii) any other person whom the State Government may specify in this behalf by his designation, to notify every birth or death or both at which he or she attended or was
present, or which occurred in such areas as may be prescribed, to the Registrar within such time and in such manner as may be prescribed. “
CONTd ...
b—It may be mandatory in a state to give a cause of death certificate as well in terms of section 10(2), reproduced below:
ReplyDelete“10 (2) In any area, the State Government, having regard to the facilities available therein in this behalf, may require that a certificate as to the cause of death shall be obtained by the Registrar from such person
and in such form as may be prescribed.”
c—The manner and requirements regarding a cause of death certificate are as follows:
“10 (3) Where the State Government has required under sub-section (2)that a certificate as to the cause of death shall be obtained, in the event of the death of any person who, during the last illness, was attended by a medical practitioner, the medical practitioner shall, after the death of
that person, forthwith, issue without charging any fee, to the person required under this Act to give information concerning the death, a
certificate in the prescribed form stating to the best of his knowledge and belief the cause of death; and the certificate shall be received and delivered by such person to the Registrar at the time of giving information concerning the death as required by this Act.”
d—Since you never treated this patient, you are not competent to give the cause of death certificate and you should not do so.
e—When a patient is brought dead to a government hospital, the DGHS guidelines are that an MLC should be prepared and police should be informed.
M C Gupta
QUESTION—* If a patient is brought dead to a hospital by relatives, is it the duty of the hospital authorities to issue a death certificate and send the death information to the Birth & death registrar?
ReplyDelete*ANSWER—*
The legal position is as follows:
a--As per Section 10(1) of the Registration of Births And Deaths Act, 1969,“10. (1) It shall be the duty of –
(i) the midwife or any other medical or health attendant at a birth or death,
(ii) the keeper or the owner of a place set apart for the disposal of dead bodies or any person required by a local authority to be present at such place, or
iii) any other person whom the State Government may specify in this behalf by his designation,
to notify every birth or death or both at which he or she attended or was present, or which occurred in such areas as may be prescribed, to the Registrar within such time and in such manner as may be prescribed. “
b—The above means that the hospital is not empowered to issue a death certificate to a person brought dead to the hospital unless any person in the hospital has been specified in this behalf by his designation in accordance with clause (iii) above.
c—However, in case of government hospitals, the following guidelines have been prescribed in the “Hospital Manual” published in 2002 by the
Directorate General of Health Services, MOHFW, GOI, in chapter 12 titled “Medical Record Services”.
"In cases of persons brought dead to the casualty, MLC register must be filled in and, after informing the police, the body, with proper identification tags, be shifted to mortuary with a request duly signed and
stamped by CMO”.
d—It would not be objectionable if the non-government hospitals follow the guidelines prescribed for government hospitals. It may even be desirable to do so.
e—Following the above guideline, legally speaking, does not change the position in b above. The hospital authorities should make necessary inquiry from the state health directorate to get a realistic official answer. The position can vary from state to state. Different states can have different laws and rules. Health is a state subject.
M C Gupta
QUESTION—During a routine health check- up plan, a hospital gave wrong blood group report to a person. He did not suffer any adverse consequences. What defence does the hospital have? What liability may lie upon the
ReplyDeletehospital?*
*ANSWER—*
A—In the normal course, the person can have only three legal recourses. ONE, he can file a police complaint. TWO, he can file a consumer complaint. THREE, he can file a complaint with the medical council. In the first two,the police and the consumer court cannot proceed ahead without an adverse report against the hospital. No doctor is likely to give such a report. Likewise, the medical council is unlikely to punish the concerned doctor. [Please note that the council has no no jurisdiction against the hospital]. If
at all, it may issue a warning.
B—Even if the consumer court proceeds against the hospital, no liability will lie because no damage has been caused to the patient.
C—The police cannot register an FIR because even it was a negligent act, it cannot be placed in the category of a grossly negligent act.
D—As soon as the error is detected, the hospital should write a letter of regret to the person, enclosing the fresh and correct report, advising him to destroy the old report in his own interest because it may cause confusion
at some future date.
E—Nevertheless, a wrong blood group report is indicative of a serious flaw in the functioning and supervision in the laboratory. The hospital should immediately set up a high power committee to find the cause of the error and
to suggest the steps necessary for avoiding it in future. It would be desirable to get an accreditation for the laboratory from a recognised agency.
F—The plain and simple defence of the hospital is that it was a rare, unforeseen error due to wrong chemicals or apparatus or human observation oe recording mechanism etc. that can happen in the course of functioning of any
laboratory and that necessary action has been taken and correct report has been given to the patient.
M C Gupta
QUESTION—Is it legally possible for two clinical laboratories to function under the supervision of the same doctor, the laboratories being situated in two different cities 35 km. apart?*
ReplyDelete*ANSWER—*
a—Running a pathological laboratory / clinical laboratory amounts to practice of pathology and hence only a person having a qualification in
pathology is legally entitled to run such a laboratory.
b—A person may own not but ten laboratories but each must have a pathologist working there. Some laboratory technicians may also be working in the set up but the laboratory must be run by the pathologist and not by the technicians. Merely signing a laboratory report when the tests are performed by the technicians is not sufficient to claim that the laboratory is being
run by the pathologist.
c—The above position is in accordance with the following observation of the Madhya Pradesh High Court in Smt. Kamla Patel vs State Of M.P. And Ors., decided on 13 January, 2003:
“In the instant case, it clearly emerges out from the facts that laboratory is being run by Smt. Kamla Patel who is not shown to be possessing recognised diploma qualification and so called Doctor B. M. Agrawal makes visit for one or two hours after one or two days i.e. twice or thrice in a week though which claim itself is doubtful. Such laboratories cannot be said to be 'run by pathologist' but 'run' by 'laboratory technician' for all the
purposes and, in my opinion, in order to weed out quakes it is necessary to draw a line between a laboratory run by pathologist and run by technician. The pathologist must attend the laboratory regularly and should perform the
reading and should get the tests performed under his supervision and only thereafter can sign the reports. Same is necessary to weed out the quackery from the field of pathological laboratories. The laboratories which are not
being run by pathologist cannot be, in my opinion, allowed to run by State.
Pathologist should run the laboratory on regular basis and must have the deep and real interest in running of the laboratory.”
d—In view of the above, it looks unlikely that it may be legally safe for a doctor to run
two laboratories situated in two different cities 35 km. apart.
M C Gupta
*1--QUESTION—When a general consent is obtained from the patient during admission, is there any legal requirement to obtain separate consents for individual procedures?*
ReplyDelete* *
*ANSWER—*Yes. It is legally necessary. The reason is that consent is valid only when it is an informed consent, meaning thereby that the person giving the consent knows fully and correctly as to what he is consenting for. It is
obvious that if a general consent for “any investigative procedure or any medical or surgical treatment during hospitalization” is obtained at the time of the admission and a kidney or uterus or ovaries are taken out later,
this may be deemed objectionable by the patient and if he sues the doctor, he / she is likely to be successful.
In Samira Kohli case, the Supreme Court framed six issues, including the following:
*“(ii) When a patient consults a medical practitioner, whether consent given for diagnostic surgery, can be construed as consent for *
*performing additional or further surgical procedure -- either as **conservative treatment or as radical treatment -- without the *
specific consent for such additional or further surgery.” *
*In respect of this issue, the Supreme Court observed as follows”*
Para14-- Consent in the context of a doctor-patient relationship, means the
grant of permission by the patient for an act to be carried out by the doctor, such as a diagnostic, surgical or therapeutic procedure. Consent can be implied in some circumstances from the action of the patient. For
example, when a patient enters a Dentist's clinic and sits in the Dental chair, his consent is implied for examination, diagnosis and consultation.
Except where consent can be clearly and obviously implied, there should be express consent. There is, however, a significant difference in the nature of express consent of the patient, known as 'real consent' in UK
and as 'informed consent' in America. In UK, the elements of consent are defined with reference to the patient and a consent is considered to be valid and 'real' when (i) the patient gives it voluntarily without any
coercion; (ii) the patient has the capacity and competence to give consent; and (iii) the patient has the minimum of adequate level of information about the nature of the procedure to which he is consenting to. On theother hand, the concept of 'informed consent' developed by American courts, while retaining the basic requirements consent, shifts the emphasis
to the doctor's duty to disclose the necessary information to the patient to secure his consent. 'Informed consent' is defined in Taber's Cyclopedic Medical Dictionary thus :
*1--QUESTION—When a general consent is obtained from the patient during admission, is there any legal requirement to obtain separate consents for individual procedures?*
ReplyDelete* *
*ANSWER—*Yes. It is legally necessary. The reason is that consent is valid only when it is an informed consent, meaning thereby that the person giving the consent knows fully and correctly as to what he is consenting for. It is
obvious that if a general consent for “any investigative procedure or any medical or surgical treatment during hospitalization” is obtained at the time of the admission and a kidney or uterus or ovaries are taken out later,
this may be deemed objectionable by the patient and if he sues the doctor, he / she is likely to be successful.
In Samira Kohli case, the Supreme Court framed six issues, including the following:
*“(ii) When a patient consults a medical practitioner, whether consent given for diagnostic surgery, can be construed as consent for *
*performing additional or further surgical procedure -- either as **conservative treatment or as radical treatment -- without the *
specific consent for such additional or further surgery.” *
*In respect of this issue, the Supreme Court observed as follows”*
Para14-- Consent in the context of a doctor-patient relationship, means the
grant of permission by the patient for an act to be carried out by the doctor, such as a diagnostic, surgical or therapeutic procedure. Consent can be implied in some circumstances from the action of the patient. For
example, when a patient enters a Dentist's clinic and sits in the Dental chair, his consent is implied for examination, diagnosis and consultation.
CONTd
Except where consent can be clearly and obviously implied, there should be express consent. There is, however, a significant difference in the nature of express consent of the patient, known as 'real consent' in UK
ReplyDeleteand as 'informed consent' in America. In UK, the elements of consent are defined with reference to the patient and a consent is considered to be valid and 'real' when (i) the patient gives it voluntarily without any
coercion; (ii) the patient has the capacity and competence to give consent; and (iii) the patient has the minimum of adequate level of information about the nature of the procedure to which he is consenting to. On theother hand, the concept of 'informed consent' developed by American courts, while retaining the basic requirements consent, shifts the emphasis
to the doctor's duty to disclose the necessary information to the patient to secure his consent. 'Informed consent' is defined in Taber's Cyclopedic Medical Dictionary thus :
"Consent that is given by a person after receipt of the following information : the nature and purpose of the proposed procedure or
treatment; the expected outcome and the likelihood of success; the risks; the alternatives to the procedure and supporting information regarding those alternatives; and the effect of no treatment or procedure, including the effect on the prognosis and the material risks associated with no treatment. Also included are instructions concerning
what should be done if the procedure turns out to be harmful or unsuccessful."
In Canterbury v. Spence - 1972 [464] Federal Reporter 2d. 772, the United States Courts of appeals, District of Columbia Circuit, emphasized the element of Doctor's duty in 'informed consent' thus:
"It is well established that the physician must seek and secure his patient's consent before commencing an operation or other course of
treatment. It is also clear that the consent, to be efficacious, must be free from imposition upon the patient. It is the settled rule that therapy not authorized by the patient may amount to a tort - a common law battery - by the physician. And it is evident that it is normally impossible to obtain a consent worthy of the name unless the physician first elucidates the options and the perils for the patient's edification.
Thus the physician has long borne a duty, on pain of liability for unauthorized treatment, to make adequate disclosure to the patient."
Except where consent can be clearly and obviously implied, there should be express consent. There is, however, a significant difference in the nature of express consent of the patient, known as 'real consent' in UK
ReplyDeleteand as 'informed consent' in America. In UK, the elements of consent are defined with reference to the patient and a consent is considered to be valid and 'real' when (i) the patient gives it voluntarily without any
coercion; (ii) the patient has the capacity and competence to give consent; and (iii) the patient has the minimum of adequate level of information about the nature of the procedure to which he is consenting to. On theother hand, the concept of 'informed consent' developed by American courts, while retaining the basic requirements consent, shifts the emphasis
to the doctor's duty to disclose the necessary information to the patient to secure his consent. 'Informed consent' is defined in Taber's Cyclopedic Medical Dictionary thus :
"Consent that is given by a person after receipt of the following information : the nature and purpose of the proposed procedure or
treatment; the expected outcome and the likelihood of success; the risks; the alternatives to the procedure and supporting information regarding those alternatives; and the effect of no treatment or procedure, including the effect on the prognosis and the material risks associated with no treatment. Also included are instructions concerning
what should be done if the procedure turns out to be harmful or unsuccessful."
In Canterbury v. Spence - 1972 [464] Federal Reporter 2d. 772, the United States Courts of appeals, District of Columbia Circuit, emphasized the element of Doctor's duty in 'informed consent' thus:
CONTD
"It is well established that the physician must seek and secure his patient's consent before commencing an operation or other course of
ReplyDeletetreatment. It is also clear that the consent, to be efficacious, must be free from imposition upon the patient. It is the settled rule that therapy not authorized by the patient may amount to a tort - a common law battery - by the physician. And it is evident that it is normally impossible to obtain a consent worthy of the name unless the physician first elucidates the options and the perils for the patient's edification.
Thus the physician has long borne a duty, on pain of liability for unauthorized treatment, to make adequate disclosure to the patient
15. The basic principle in regard to patient's consent may be traced to the following classic statement by Justice Cardozo in Schoendorff vs.
Society of New York Hospital - (1914) 211 NY 125 : 'Every human being of adult years and sound mind has a right to determine what should be done with his body; and a surgeon who performs the operation without his patient's consent, commits an assault for which he is liable in damages." This principle has been accepted by English court also. In Re : F. 1989(2) All ER 545, the House of Lords while dealing with a case of sterilization of a mental patient reiterated the fundamental principle that every person's body is inviolate and performance of a medical operation on a
person without his or her consent is unlawful. The English law on this aspect is summarised thus in Principles of Medical Law (published by
Oxford University Press -- Second Edition, edited by Andrew Grubb,Para 3.04, Page 133):
"Any intentional touching of a person is unlawful and amounts to the tort of battery unless it is justified by consent or other
lawful authority. In medical law, this means that a doctor may only carry out a medical treatment or procedure which involves
contact with a patient if there exists a valid consent by the patient (or another person authorized by law to consent on his
behalf) or if the touching is permitted notwithstanding the absence of consent."
"It is well established that the physician must seek and secure his patient's consent before commencing an operation or other course of
ReplyDeletetreatment. It is also clear that the consent, to be efficacious, must be free from imposition upon the patient. It is the settled rule that therapy not authorized by the patient may amount to a tort - a common law battery - by the physician. And it is evident that it is normally impossible to obtain a consent worthy of the name unless the physician first elucidates the options and the perils for the patient's edification.
Thus the physician has long borne a duty, on pain of liability for unauthorized treatment, to make adequate disclosure to the patient
15. The basic principle in regard to patient's consent may be traced to the following classic statement by Justice Cardozo in Schoendorff vs.
Society of New York Hospital - (1914) 211 NY 125 : 'Every human being of adult years and sound mind has a right to determine what should be done with his body; and a surgeon who performs the operation without his patient's consent, commits an assault for which he is liable in damages." This principle has been accepted by English court also. In Re : F. 1989(2) All ER 545, the House of Lords while dealing with a case of sterilization of a mental patient reiterated the fundamental principle that every person's body is inviolate and performance of a medical operation on a
person without his or her consent is unlawful. The English law on this aspect is summarised thus in Principles of Medical Law (published by
Oxford University Press -- Second Edition, edited by Andrew Grubb,Para 3.04, Page 133):
CONTD
"Any intentional touching of a person is unlawful and amounts to the tort of battery unless it is justified by consent or other
ReplyDeletelawful authority. In medical law, this means that a doctor may only carry out a medical treatment or procedure which involves
contact with a patient if there exists a valid consent by the patient (or another person authorized by law to consent on his
behalf) or if the touching is permitted notwithstanding the absence of consent."
16. The next question is whether in an action for negligence/battery for
performance of an unauthorized surgical procedure, the Doctor can put forth as defence the consent given for a particular operative procedure, as consent for any additional or further operative procedures performed in
the interests of the patient. In Murray vs. McMurchy - 1949 (2) DLR 442,the Supreme Court of BC, Canada, was considering a claim for battery by a patient who underwent a caesarian section. During the course of Caesarian section, the doctor found fibroid tumors in the patient's uterus. Being of the view that such tumours would be a danger in case of future
pregnancy, he performed a sterilization operation. The court upheld the
claim for damages for battery. It held that sterilization could not be justified under the principle of necessity, as there was no immediate threat or danger to the patient's health or life and it would not have been
unreasonable to postpone the operation to secure the patient's consent. The fact that the doctor found it convenient to perform the sterilization operation without consent as the patient was already under general anaesthetic, was held to be not a valid defence. A somewhat similar view was expressed by Courts of Appeal in England in Re : F. (supra). It was
held that the additional or further treatment which can be given (outside the consented procedure) should be confined to only such treatment as is necessary to meet the emergency, and as such needs to be carried out at once and before the patient is likely to be in a position to make a decision for himself. Lord Goff observed:
"Where, for example, a surgeon performs an operation without his consent on a patient temporarily rendered unconscious in an
accident, he should do no more than is reasonably required, in the best interests of the patient, before he recovers consciousness. I can see no practical difficulty arising from this requirement, which derives from the fact that the patient is expected before long to regain consciousness and can then be
consulted about longer term measures."
"Any intentional touching of a person is unlawful and amounts to the tort of battery unless it is justified by consent or other
ReplyDeletelawful authority. In medical law, this means that a doctor may only carry out a medical treatment or procedure which involves
contact with a patient if there exists a valid consent by the patient (or another person authorized by law to consent on his
behalf) or if the touching is permitted notwithstanding the absence of consent."
16. The next question is whether in an action for negligence/battery for
performance of an unauthorized surgical procedure, the Doctor can put forth as defence the consent given for a particular operative procedure, as consent for any additional or further operative procedures performed in
the interests of the patient. In Murray vs. McMurchy - 1949 (2) DLR 442,the Supreme Court of BC, Canada, was considering a claim for battery by a patient who underwent a caesarian section. During the course of Caesarian section, the doctor found fibroid tumors in the patient's uterus. Being of the view that such tumours would be a danger in case of future
pregnancy, he performed a sterilization operation. The court upheld the
claim for damages for battery. It held that sterilization could not be justified under the principle of necessity, as there was no immediate threat or danger to the patient's health or life and it would not have been
unreasonable to postpone the operation to secure the patient's consent. The fact that the doctor found it convenient to perform the sterilization operation without consent as the patient was already under general anaesthetic, was held to be not a valid defence. A somewhat similar view was expressed by Courts of Appeal in England in Re : F. (supra). It was
held that the additional or further treatment which can be given (outside the consented procedure) should be confined to only such treatment as is necessary to meet the emergency, and as such needs to be carried out at once and before the patient is likely to be in a position to make a decision for himself. Lord Goff observed:
CONTD
"Where, for example, a surgeon performs an operation without his consent on a patient temporarily rendered unconscious in an
ReplyDeleteaccident, he should do no more than is reasonably required, in the best interests of the patient, before he recovers consciousness. I can see no practical difficulty arising from this requirement, which derives from the fact that the patient is expected before long to regain consciousness and can then be
consulted about longer term measures."
The decision in Marshell vs. Curry - 1933 (3) DLR 260 decided by the Supreme Court of NS, Canada, illustrates the exception to the rule, that an unauthorized procedure may be justified if the patient's medical condition brooks no delay and warrants immediate action without
waiting for the patient to regain consciousness and take a decision for
himself. In that case the doctor discovered a grossly diseased testicle while performing a hernia operation. As the doctor considered it to be gangrenous, posing a threat to patient's life and health, the doctor removed it without consent, as a part of the hernia operation. An action for battery was brought on the ground that the consent was for a hernia operation and removal of testicle was not consent. The claim was dismissed. The court was of the view that the doctor can act without the consent of the patient where it is necessary to save the life or preserve the health of the patient. Thus, the principle of necessity by which the doctor
is permitted to perform further or additional procedure (unauthorized) is restricted to cases where the patient is temporarily incompetent (being unconscious), to permit the procedure delaying of which would be unreasonable because of the imminent danger to the life or health of the patient.
CONTD
17. It is quite possible that if the patient been conscious, and informed about the need for the additional procedure, the patient might have agreed to it. It may be that the additional procedure is beneficial and in the interests of the patient. It may be that postponement of the additional procedure (say removal of an organ) may require another surgery, whereas removal of the affected organ during the initial diagnostic or exploratory surgery, would save the patient from the pain and cost of a second operation. Howsoever practical or convenient the reasons may be, they are not relevant. What is relevant and of importance is the inviolable nature of the patient's right in regard to his body and his right to decide whether he should undergo the particular treatment or surgery or not. Therefore at the risk of repetition, we may add that unless the unauthorized additional or further procedure is necessary in order to save the life or preserve the health of the patient and it would be unreasonable (as contrasted from being merely inconvenient) to delay the further procedure until the patient regains consciousness and takes a decision, a doctor cannot perform such procedure without the consent of the patient.
ReplyDeleteCONTD
18. We may also refer to the code of medical ethics laid down by theMedical Council of India (approved by the Central Government under section 33 of Indian Medical Council Act, 1956). It contains a chapter relating to disciplinary action which enumerates a list of responsibilities, violation of which will be professional misconduct. Clause 13 of the said chapter places the following responsibility on a doctor : " Before performing an operation the physician should obtain in writing the consent from the husband or wife, parent or guardian in the case of a minor, or the patient himself as the case may be. In an
ReplyDeleteoperation which may result in sterility the consent of both husband and wife is needed."
We may also refer to the following guidelines to doctors, issued by the General Medical Council of U.K. i seeking consent of the patient for investigation and treatment : “Patients have a right to information about their condition and the treatment options available to them. The amount of information you give each patient will vary, according to factors such as the nature of the condition, the complexity of the treatment, the risks associated with the treatment or procedure, and the patient's own wishes. For example, patients may need more information to make an informed decision about the procedure which carries a high risk of failure or adverse side effects; or about an investigation for a condition which, if present, could have serious implications for the patient's employment, social or personal life.”
CONTd
The Court further summarised the views as follows:
ReplyDelete“(B) Each patient has right to consent, or to refuse consent, to any proposed procedure of therapeutic course."
19. We therefore hold that in Medical Law, where a surgeon is consulted by a patient, and consent of the patient is taken for diagnostic procedure/surgery, such consent cannot be considered as authorisation or permission to perform therapeutic surgery either conservative or radical (except in life threatening or emergent situations). Similarly where the consent by the patient is for a particular operative surgery, it cannot be treated as consent for an unauthorized additional procedure involving
removal of an organ, only on the ground that such removal is beneficial to the patient or is likely to prevent some danger developing in future, where there is no imminent danger to the life or health of the patient.” Thus it should be clear that a general consent at the time of admission cannot serve the purpose because it cannot be deemed as an informed consent for a specific surgical procedure carried out later.
M C Gupta
Who can give consent on behalf of a patient?*
ReplyDelete*QUESTION—Who is eligible to give consent for an operation on behalf of the patient?*
*ANSWER—*Keeping in mind the judgment of the Supreme Court in Samira Kohli case [Samira Kohli v. Dr. Prabha Manchanda & Anr., 16 January 2008], I suggest the following guidelines:
1—As far as possible, the consent should be from the patient himself or herself.
2--If this is not possible due to any reason, the consent must be from a person who has been duly authorised by the patient.
3—If it is an emergency life- saving situation, surgery may be undertaken
without express consent, but it should be limited to the surgery needed to save life and nothing more. [I suggest that even in such cases, three doctors may put it in writing under their signature that the situation is of
an emergency nature and is necessary to save life and hence they are jointly of the opinion that surgery needs to be carried out to save life even in the absence of consent.] Please note that this would not apply if there is
refusal of consent by the patient or the authorised representative. If the patient refuses consent for life saving surgery, the doctors have no right to operate upon him. However, in such a situation, a board of three doctors must put in writing that in their opinion, the surgery is needed to save the
life of the patient, but is not being performed because of express refusal by the patient or the authorised representative. In such a situation, the treating doctor should inform the medical superintendent / hospital
administrator also who, in turn, may like to keep the hospital’s advocate in the loop.
4—In case of a minor or a person of unsound mind, the guardian can give consent.
-M C Gupta
*Can extended surgery be performed on the strength of the consent given for lesser surgery?*
ReplyDelete*2--QUESTION—Consent has been taken for a particular surgery. During the pre-operative phase, the surgeon decided to perform an extended surgery. Is a fresh consent needed?*
* *
*ANSWER—*The answer is an unambiguous YES. Look at it this way. Your friend gives his consent that you may buy for him a radio and gives you for this purpose a blank signed cheque in which you may fill the amount equivalent to the price of a radio and withdraw the same from his bank account. In this situation, you cannot withdraw a larger sum of money and buy a television
for him.
----M C Gupta
*Is relatives’ consent a must before putting the patient in a ventilator?*
ReplyDelete*QUESTION—Is it essential to take the consent of the relatives before putting the patient into a ventilator during an emergency when it is a question of saving life?*
*ANSWER—*No. In accordance with the Supreme Court’s judgment in Samira Kohli case [Samira Kohli v. Dr. Prabha Manchanda & Anr., 16 January 2008], consent is not necessary when it is an emergency situation and the procedure
concerned is essential to save life.
However, if the patient himself or his duly authorised representative withhold consent / refuse consent, the doctors cannot enforce a procedure even if it essential to save life.
----M C Gupta
*Can a doctor withhold resuscitation if the same has been refused through “living will”?*
*3--QUESTION—A patient has given to his authorised representative and to the treating doctor a legally valid “living will” which states that in case he becomes critically ill and develops unconsciousness or unsoundness of mind that deprives him of the ability to give informed consent for any resuscitative procedure in case he is on the verge of death, he should not be resuscitated by any medical procedure. The patient becomes critical and
the treating doctor wants to resuscitate him by procedures like CPR, cardio-version or by putting him in the ventilator. Can he do so?*
*ANSWER*—No. If the doctor performs a procedure upon a patient’s body against his consent, it would be a clearly illegal act and would amount to battery. Forcible treatment cannot be given against will, even to save life. The correct procedure in such a situation is to hang on the bed-side a clear and bold sign “DNR” [Do Not Resuscitate]. No resuscitation should be tried.
However, it must be made sure that all relevant facts in this regard are properly documented. It is advisable that the decision to withhold treatment / resuscitation should be endorsed by a committee of three doctors and the
medical superintendent is kept informed.
-M C Gupta
QUESTION—Can a ventilator be taken out with due consent from the patient’s relatives?*
ReplyDelete*ANSWER—*The question appears to have been wrongly framed. The treating doctor has no business telling the relatives that he plans to take the patient off the ventilator and to take their consent for the same. This will amount to euthanasia which is illegal and the doctor would be charged with murder. If you want to know whether the doctor can stop the ventilator if the authorised representative of the patient withholds consent for continuation of the ventilator support and demands in writing to stop the same, then the doctor would be legally bound to stop the ventilator. Nobody’s body can be touched or violated against his or her will.
-M C Gupta
QUESTION—Can a patient be released temporarily during admission after obtaining a “temporary DORB”?*
*ANSWER—*This is an oddly framed question. There is no question of releasing a patient. He is not a prisoner. If a patient does not want to stay in the hospital, he cannot be kept even for a minute against his will. Even the
high sounding phrase “Discharged on risk bond” is not needed. There is no question of executing a legal bond before the patient is allowed to go from the hospital. All that is needed is that an adult patient in a sound mind
should give in writing that he wants to go out of the hospital for some time / days and that he alone would be responsible if his health deteriorates as a result. This should be properly documented along with two witnesses. If
the patient is a minor or of unsound mind, his legal guardian can give a similar undertaking.
-M C Gupta
Can an emergency operation be performed in the absence of family members?*
ReplyDelete*5--QUESTION—Can an emergency operation, including putting in a temporary pacemaker, be performed without consent when the patient is not in a position to give consent and no family members are present?*
*ANSWER—*Yes, it can be performed if the operation is essential to save life. However, it would be advisable to obtain informed consent as soon as the family members are available or the patient is able to give consent. The relevant facts should be properly documented under signatures of three doctors.
-M C Gupta
Should a foreign body found in the abdomen be sent for further tests to
determine its nature?*
*6--QUESTION—The surgeon finds a foreign body in the abdomen. Its nature is
not clear. It may be a gauze piece. Is it necessary to send it for
histopathological examination to determine its nature?*
* *
*ANSWER—*It is highly advisable to do so. It is likely that this case may have legal implications. The finding of a foreign body can be the consequence of a previous a criminal act, including medical negligence. If litigation ensues later, the foreign body would in itself be crucial evidence during the course of litigation. Not preserving evidence or not
doing necessary tests to determine the nature of the foreign body may in itself be deemed an act of negligence on the part of the surgeon. It is advisable that in such a situation, the patient / relatives should be duly informed about the foreign body. It would then be up to them to make any complaints to any authority. If the circumstances suggest foul play,
including criminal medical negligence, it would be desirable that the doctor / hospital should register it as a medico-legal case and inform the police.
-M C Gupta
QUESTION—A mother wants that her cord blood should be preserved after delivery. Can the doctor act upon her request without written consent from the father?*
ReplyDelete*ANSWER—*There is no such rule. Such requirement does not follow even as per logic and principles of law. Any person is within his or her right to preserve his or her own tissue without anybody’s consent. A woman is not
deprived of this right just because she is a mother. She can’t be denied this right if the father is not willing or is not available to give consent or is not traceable or is unknown or is dead. However, it will be prudent to
get the father’s consent also to avoid unnecessary problems in future. If he withholds consent, the woman and the doctors can go ahead with preservation of the cord blood. Relevant facts should be properly documented. If there is
refusal by father, it is better that the documentation should be under signature of the mother, any other relative and one or more other doctor(s).
-M C Gupta
QUESTION—*A patient needs blood transfusion*. *The relatives of a patient want to know the name and religion of the person who donated the
blood. Is it mandatory for the hospital to divulge such information?
*ANSWER—*No. It is not mandatory at all. It is not even desirable. The way blood banks function, it is not feasible to maintain such record. Even if such record is available, divulging it to the recipient would be illegal. When a person comes to a doctor and the doctor takes his necessary history and
performs necessary clinical examination and conducts necessary laboratory tests and makes a clinical assessment as to whether he is healthy or diseased and whether he is in a fit condition to donate blood, and, if considered fit, collects blood under his constant supervision to avoid / treat any complication and prescribes necessary medicines to be taken for a few months after blood donation and advises the donor to report to him in
case he develops any signs of ill health after blood donation, the doctor is performing the functions of a clinician towards a patient. Thus there exists a doctor-patient relationship between the doctor and the donor. This means
there is a requirement on the part of the doctor / hospital to maintain confidentiality as regards the particulars of the patient / donor. Breach of such confidentiality would be illegal on the part of the hospital / doctor
and they can be sued for breach of confidentiality.
-M C Gupta
QUESTION—A mother wants that her cord blood should be preserved after delivery. Can the doctor act upon her request without written consent from the father?*
ReplyDelete*ANSWER—*There is no such rule. Such requirement does not follow even as per logic and principles of law. Any person is within his or her right to preserve his or her own tissue without anybody’s consent. A woman is not
deprived of this right just because she is a mother. She can’t be denied this right if the father is not willing or is not available to give consent or is not traceable or is unknown or is dead. However, it will be prudent to
get the father’s consent also to avoid unnecessary problems in future. If he withholds consent, the woman and the doctors can go ahead with preservation of the cord blood. Relevant facts should be properly documented. If there is
refusal by father, it is better that the documentation should be under signature of the mother, any other relative and one or more other doctor(s).
-M C Gupta
QUESTION—A mother wants that her cord blood should be preserved after delivery. Can the doctor act upon her request without written consent from the father?*
ReplyDelete*ANSWER—*There is no such rule. Such requirement does not follow even as per logic and principles of law. Any person is within his or her right to preserve his or her own tissue without anybody’s consent. A woman is not
deprived of this right just because she is a mother. She can’t be denied this right if the father is not willing or is not available to give consent or is not traceable or is unknown or is dead. However, it will be prudent to
get the father’s consent also to avoid unnecessary problems in future. If he withholds consent, the woman and the doctors can go ahead with preservation of the cord blood. Relevant facts should be properly documented. If there is
refusal by father, it is better that the documentation should be under signature of the mother, any other relative and one or more other doctor(s).
-M C Gupta
QUESTION—*A patient needs blood transfusion*. *The relatives of a patient want to know the name and religion of the person who donated the
ReplyDeleteblood. Is it mandatory for the hospital to divulge such information?
*ANSWER—*No. It is not mandatory at all. It is not even desirable. The way blood banks function, it is not feasible to maintain such record. Even if such record is available, divulging it to the recipient would be illegal. When a person comes to a doctor and the doctor takes his necessary history and
performs necessary clinical examination and conducts necessary laboratory tests and makes a clinical assessment as to whether he is healthy or diseased and whether he is in a fit condition to donate blood, and, if considered fit, collects blood under his constant supervision to avoid / treat any complication and prescribes necessary medicines to be taken for a few months after blood donation and advises the donor to report to him in
case he develops any signs of ill health after blood donation, the doctor is performing the functions of a clinician towards a patient. Thus there exists a doctor-patient relationship between the doctor and the donor. This means
there is a requirement on the part of the doctor / hospital to maintain confidentiality as regards the particulars of the patient / donor. Breach of such confidentiality would be illegal on the part of the hospital / doctor
and they can be sued for breach of confidentiality.
-M C Gupta
QUESTION—Can a hospital include HIV test along with hepatitis B and C as routine pre-operative serology without the consent of the patient?*
ReplyDelete*ANSWER—*
As per NABL and NABH guidelines, consent is mandatory. It is a must to take the patient's consent for HIV testing. A doctor has no right to conduct a test forcibly. He also does not have a right to collect blood for some other
test, say hemogram / *hepatitis B and C *and send a part of it for HIV testing. He even does not have the right to collect blood from the patient, telling him that the blood will be sent for hemogram and also some other test, and then get the hemogram and HIV testing done. The reason is that when the patient agrees to give blood for “hemogram and also some other test”, this cannot be construed as meaning that the “some other test” means HIV test. This would not be treated in law as informed consent. If the consent is not informed consent, it is not legally valid. Please note that if HIV testing is done without the clear consent of the patient, he can legally sue and most likely win. Please note that the patient has a right to refuse consent for HIV testing. He also has a right to refuse to undergo forcible testing without consent. He also has a right to sue the doctor / hospital for violation of his right.
Please also note that if the patient refuses consent for HIV testing, there are several possible courses of action:
i—If the proposed treatment / procedure / surgery is not a life- saving one, the doctors would be within their right not to go ahead with the proposed treatment / procedure / surgery and to inform the patient accordingly, along with the reasons and consequences of withholding the same.
ii- If the treatment / procedure / surgery is a life- saving one, or if it is an emergency and there is no time to wait for the HIV test report, the doctors should not withhold it but carry out the same using all proper precautions and equipment needed for safe barrier surgery. The patient should be billed later for the cost towards such equipment etc. as per hospital rules.
iii—In the above situation, if safety equipments (gowns, gloves etc.) are not available, the doctors may refuse to treat the patient or may, depending upon the circumstances, may agree to treat the patient and, immediately afterwards, if there is confirmed or unconfirmed suspicion / possibility of the patient being an HIV positive person, take necessary prophylactic
treatment / immunisation etc. to prevent the future development of HIV infection within their body.
Please note that doctors cannot be expected in law to endanger their own life in order to save that of others. However, this being a sensitive area, the doctors MUST maintain proper written records of all necessary decisions, along with the reasons thereof, duly authenticated, as far as possible, by a committee of two or more doctors. The medical superintendent of the hospital must be kept, in writing, in the picture.
-M C Gupta
QUESTION—Can a hospital include HIV test along with hepatitis B and C as routine pre-operative serology without the consent of the patient?*
ReplyDelete*ANSWER—*
As per NABL and NABH guidelines, consent is mandatory. It is a must to take the patient's consent for HIV testing. A doctor has no right to conduct a test forcibly. He also does not have a right to collect blood for some other
test, say hemogram / *hepatitis B and C *and send a part of it for HIV testing. He even does not have the right to collect blood from the patient, telling him that the blood will be sent for hemogram and also some other test, and then get the hemogram and HIV testing done. The reason is that when the patient agrees to give blood for “hemogram and also some other test”, this cannot be construed as meaning that the “some other test” means HIV test. This would not be treated in law as informed consent. If the consent is not informed consent, it is not legally valid. Please note that if HIV testing is done without the clear consent of the patient, he can legally sue and most likely win. Please note that the patient has a right to refuse consent for HIV testing. He also has a right to refuse to undergo forcible testing without consent. He also has a right to sue the doctor / hospital for violation of his right.
Please also note that if the patient refuses consent for HIV testing, there are several possible courses of action:
i—If the proposed treatment / procedure / surgery is not a life- saving one, the doctors would be within their right not to go ahead with the proposed treatment / procedure / surgery and to inform the patient accordingly, along with the reasons and consequences of withholding the same.
ii- If the treatment / procedure / surgery is a life- saving one, or if it is an emergency and there is no time to wait for the HIV test report, the doctors should not withhold it but carry out the same using all proper precautions and equipment needed for safe barrier surgery. The patient should be billed later for the cost towards such equipment etc. as per hospital rules.
CONTd
iii—In the above situation, if safety equipments (gowns, gloves etc.) are not available, the doctors may refuse to treat the patient or may, depending upon the circumstances, may agree to treat the patient and, immediately afterwards, if there is confirmed or unconfirmed suspicion / possibility of the patient being an HIV positive person, take necessary prophylactic
ReplyDeletetreatment / immunisation etc. to prevent the future development of HIV infection within their body.
Please note that doctors cannot be expected in law to endanger their own life in order to save that of others. However, this being a sensitive area, the doctors MUST maintain proper written records of all necessary decisions, along with the reasons thereof, duly authenticated, as far as possible, by a committee of two or more doctors. The medical superintendent of the hospital must be kept, in writing, in the picture.
-M C Gupta
QUESTION—A patient is fit for discharge and the relatives have been so advised. They are unwilling to take the patient home. What measures can the hospital take?*
ReplyDelete*ANSWER—*
I suggest the following legal recourse:
a—The hospital should lodge a formal complaint with the police against the relative who got the patient admitted in the hospital and other relatives concerned for illegal occupation of the hospital premises, requesting the
police to urgently move the patient from the hospital, maybe to a government hospital etc., as appropriate.
b—If the police does not act, a writ can be filed in the high court praying for similar relief.
c—In addition, a notice should be sent to the husband and the parents demanding payment of hospital bill and the litigation expenses.
However, for practical reasons, a preferable course may be to talk to local government hospital authorities at a personal level and to transfer the patient to that hospital if they agree to such request.
-M C Gupta
MD (Medicine), LL.M.
QUESTION—A patient was admitted to the private hospital in an emergency. Necessary treatment was given and the condition was stabilised.
ReplyDeleteThe patient / relatives cannot afford to pay the hospital bill any further. The relatives are unwilling to transfer the patient to a government hospital. What steps can the hospital take?*
*ANSWER—*There is no easy and practical answer. However, it is a common situation in private hospitals and will get even more common after the Clinical Establishments Act, 2010, which has been passed by both houses of the parliament, is signed by the president and is notified. If the hospitals silently suffer this situation, people will get more and more encouraged to take the patients to private hospitals for serious conditions and avoid
payment.
I suggest the following specific and general measures:
*SPECIFIC MEASURES*--
1--Send a legal notice to the relatives demanding payment of hospital bill and the litigation expenses and suggesting that they move the patient to another place since they are not paying the hospital bill. If it is not
complied, the hospital should file a civil suit for recovery of money against the concerned persons, including the sureties, if any.
2---Meanwhile, when it is likely that the payment may not be forthcoming,discretion may be used to minimize expenses that may be avoidable, without clearly endangering life. However, in such a situation, proper
documentation should be maintained to the effect that the patient is advised to be shifted to a government hospital but till that is done, the hospital administration has arranged, on humanitarian grounds, for provision of emergency life -saving treatment. Such documentation will tend to fortify
the hospital against any future litigation for medical negligence or deficiency in service.
CONTd
NOTE—
ReplyDeleteONE--The above is a legal elucidation of the issue. It is a different matter that the hospital may not like to take one or more of the above actions for reasons of practicality. The local government hospital should be approached to transfer / admit the patient.
If the above does not help, file a writ petition in the high court praying for appropriate relief.
*GENERAL MEASURES*—The following measures should be adopted in the hospital to minimise the occurrence of incidence described above:
1—Ensure full and proper information to the patients and relatives regarding the fees / service charges. Display the schedule of charges prominently. Even otherwise, this is a requirement in terms of regulation 3.7.1 of
theIndian Medical Council (Professional conduct, Etiquette and Ethics)
Regulations, 2002, reproduced below:
“3.7.1 A physician shall clearly display his fees and other charges on the board of his chamber and/or the hospitals he is visiting. Prescription should also make clear if the Physician himself dispensed any medicine.”
2—Besides displaying the schedule of charges in a prominent place, also give a printed copy to the clients / patients under acknowledgement.
3—Try to develop a system whereby the client has a daily automatically updated information about the condition of the patient and his billing position, which should be available to him every morning as a routine. Such a system will kill two birds with one stone. On the one hand, it will render the hospital non-vulnerable to the charge of not keeping the patient informed, which is a common plea in cases of alleged medical negligence. On
the other, it will serve as a daily notice to the client about the need to pay up.
4—If possible, take an advance from the patient at the time of admission and keep it replenished periodically. Do not allow the advance to be depleted or the bill to be accumulated too much.
5—At the time of admission, give to the client a rough estimate of the expenses that may be incurred.
6—When a patient is admitted, it is best to obtain signatures of the patient / relatives to the effect that they would pay all bills. In addition, a reliable and solvent person should be made to stand as surety for such payment in case the patient fails to pay the bill.
-M C Gupta
MD (Medicine), LL.M.
NOTE—
ReplyDeleteONE--The above is a legal elucidation of the issue. It is a different matter that the hospital may not like to take one or more of the above actions for reasons of practicality. The local government hospital should be approached to transfer / admit the patient.
If the above does not help, file a writ petition in the high court praying for appropriate relief.
*GENERAL MEASURES*—The following measures should be adopted in the hospital to minimise the occurrence of incidence described above:
1—Ensure full and proper information to the patients and relatives regarding the fees / service charges. Display the schedule of charges prominently. Even otherwise, this is a requirement in terms of regulation 3.7.1 of
theIndian Medical Council (Professional conduct, Etiquette and Ethics)
Regulations, 2002, reproduced below:
“3.7.1 A physician shall clearly display his fees and other charges on the board of his chamber and/or the hospitals he is visiting. Prescription should also make clear if the Physician himself dispensed any medicine.”
2—Besides displaying the schedule of charges in a prominent place, also give a printed copy to the clients / patients under acknowledgement.
3—Try to develop a system whereby the client has a daily automatically updated information about the condition of the patient and his billing position, which should be available to him every morning as a routine. Such a system will kill two birds with one stone. On the one hand, it will render the hospital non-vulnerable to the charge of not keeping the patient informed, which is a common plea in cases of alleged medical negligence. On
the other, it will serve as a daily notice to the client about the need to pay up.
CONTd
4—If possible, take an advance from the patient at the time of admission and keep it replenished periodically. Do not allow the advance to be depleted or the bill to be accumulated too much.
ReplyDelete5—At the time of admission, give to the client a rough estimate of the expenses that may be incurred.
6—When a patient is admitted, it is best to obtain signatures of the patient / relatives to the effect that they would pay all bills. In addition, a reliable and solvent person should be made to stand as surety for such payment in case the patient fails to pay the bill.
-M C Gupta
--QUESTION—A test, say MRI, is not available in the hospital but is essential for proper treatment. What should be done? Can the doctor continue with treatment without the test?*
ReplyDelete*ANSWER—*If a test is not available in the hospital, the patient should be advised that the test is necessary and that he should either get the test done outside or should transfer the patient to some hospital having the
test. . Such advice should be clearly documented. Till such test is got done by the relatives, the hospital should continue with treatment without the test.* * If the patient does not act upon the advice given, the hospital
will not be held liable for deficiency in treatment.
-M C Gupta