Monday, March 16, 2009

Archives 1 (2009-2010)

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144 comments:

  1. If a Pathologist give a report on a slide as cancer. Subsequently, on review of that slide, another pathologist give a report that it is not a cancer. What type of problem it is in terms of legal implication?
    Thanks
    AMS

    ReplyDelete
  2. Iam a Pathologist & Transfusion Medicine Specialist with great interest in Stem Cell therapy.

    Iam working in a large Corporate Hospital & our Hospital wants to introduce Stem Cell Therapy as part of treatment. Is it legal to charge the patient since we will be conducting Clinical Trials after obtaining the Consent & other regulatory permission like Ethics Committee Clearance etc.
    I feel Clinical Trials being Experimental , patients cannot be charged fees.
    Kind Regards,
    Dr M.Chandrashekhar,MD
    New Delhi
    09811896554

    ReplyDelete
  3. QUESTION: I am a pathologist with keen interest in Stem Cell Therapy. I understand from ICMR & DBT Guidelines that Stem Cell Therapy is
    mostly experimental & hence clinical trials can be conducted only after taking proper clearance from the ethics committee, as well as
    after taking proper informed consent from the patient. Can we charge fees from patients for stem cell therapy?

    ANSWER
    Informed consent is necessary from all patients irrespective of the type of special procedure or surgery etc. to be performed upon them.
    As a matter of fact, I was in the National Consumer Commission arguing a case, wherein the Hon'ble Commission stressed that such informed
    consent should be signed by the concerned patient himself if he is an adult and is conscious at the time of consent.

    2-- There is no general requirement, unless specifically attached to a particular type of treatment, that any treatment, new or old, whether well established or being newly tried, should be given free. You can certainly charge fees.

    3 It is better not to use the word experimental or trial in the medical records. It is better to use the words: New Drug Study(Drug ABC, approved for use by .... This precaution would be useful if a court case is later filed against the doctor. The complainants lawyer will jump on the word experimental or trial and will argue that his client has been made a guinea pig. Rather than try to rebut that argument in the court, it is better to nip the evil in the bud.

    M C Gupta, MD, LL.M.

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  4. QUESTION—What precautions should be taken by doctors to avoid liability for a FNAC report, which is less reliable than a biopsy report?

    ANSWER-- This is very important. I have had 3-4 cases in consumer courts where the complaint of negligence related to FNAC. Both the clinician
    (usually a surgeon) As well as the pathologist are in dock and I as a lawyer, I have to defend them. My (and their) task would become a lot easier if the pathologist appends a note on the following lines at the end of the FNAC report--

    "FNAC is not a biopsy and is no substitute for biopsy. FNAC has inherent limitations and may fail to pick up a cancer because the aspiration needle was not able to reach the cancer tissue. On the other hand, the tissue / material obtained on FNAC and sent to the pathologist may have ambiguous or equivocal features because of which a definite opinion cannot be given by
    the pathologist or which may mislead the pathologist. The treating doctor is in the best position to interpret the FNAC report and to decide the further course of action."

    M C Gupta, MD, LL.M.

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  5. QUESTION—Whose property are patient records?

    ANSWER—

    Patient records can be of two types: personal records and hospital generated records. Personal records are those that pertain specifically in an unalterable form to the patient’s body. Hospital generated records and those pertaining to record of treatment,investigations (such as blood, urine reports etc.) and consultation
    etc. The former would include x-rays, CAT-scan and MRI reports, ECG,EEG etc. The latter would include the case sheet written / complied by
    the doctors, as also the nurses record.

    In order to arrive at a legally valid answer, let us look at this question on the basis of legal principles.

    ONE, we are dealing here with moveable property.
    TWO, he is the owner who makes something on invests in something using his own resources.
    THREE, the owner usually possesses the property and has control over it.
    FOUR, owner may part with the possession, with or without his consent, with the result that while he owns it, he does not possess it.
    FIVE, property unclaimed by the owner for a specified time cannot be legally claimed after such time.

    Without elaborating in too much detail, it would be safe to answer the question, in view of the above, as follows:

    A—The case sheet written / compiled by the hospital is property of the hospital.
    B—Xrays etc. are the property of the hospital if the hospital has paid for them (such as government or charitable hospitals)
    C—Even when X-ray, ECG, EEG etc. are paid by the patient, they still remain the property of the hospital because their generation would not
    have been possible without the highly professional and advanced intricate inputs by the experts using sophisticated machines. Even
    otherwise, it is in the interest of the society and advancement of science that such records should be available permanently with the
    hospital so that necessary research in the interest of of science and society may be carried out at some future date. The only condition is that patient confidentiality should not be compromised.

    For further useful information in this connection, you may view-
    http://www.enotes.com/everyday-law-encyclopedia/medical-records

    **

    QUESTION-- What right have patients got over medical records?

    ANSWER—
    Patients have a right to demand and obtain a copy of their medical records. In terms of the Code of Medical Ethics Regulations, 2002, the
    hospital is obliged to provide such records within 72 hours of demand on payment of requisite fees.
    --
    Dr. M C Gupta
    MD (Medicine), LL.M.

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  6. QUESTION—I , have completed MBBS. I am 25 years now and currently working for WHO. I am really not very much interested in medical post
    graduation, but learning Forensic Medicine was a pleasure. I am very seriously thinking about doing LLB from this year and enter into legal
    field. I will be very grateful to you if you advise me over this decision. Some good or bad things. I am waiting for your reply.

    ============================
    ANSWER
    Dear Doctor,
    Don’t wait. Join LL.B. without delay.

    WHY YOU SHOULD STUDY LAW?

    A—General reasons:

    --Because it is your own, innate desire. Fulfil it. Otherwise, you
    will always have an unfulfilled longing.

    --Everbody needs to know law. It is a legal principle that everybody
    is supposed to know law and ignorance of law is no excuse.

    --Law empowers. Every citizen needs to deal with property,
    inheritance, income tax, marital issues, consumer issues, service
    problems, accidents, insurance, money matters (such as saving schemes,
    issuing or receiving cheques), theft etc. Each of these matters
    concerns law and may need legal help. One who knows law is more
    empowered to deal with them.

    B—Reasons specific to medical profession:

    --If you continue in the medical profession, a degree in law never
    comes in the way. I know a reputed professor of gastro-enterology in
    Delhi, Dr. S K Sarin, who is an LL.B. There was once a professor and
    head, Deptt. of medicine in Lucknow Medical College, Dr. Kanwar, who
    was an LL.M. I know a practicing surgeon in Agra, Dr. Devendra Gupta,
    who is a PhD in law. There are at least 2 law PhDs and 6-7 LL. M.s in
    Mumbai who are pursuing their own medical specialties. I know Dr.
    Kohli, MS, PhD (surgery), LL.B., who is a practicing surgeon. A doctor
    whom I taught as an MD student has followed my example and has passed
    LL.B. and is almost through his LL.M. If you continue to practice
    medicine, as most doctors do, you will be personally much less likely
    to be adversely entangled in medical negligence litigation.

    --If you stop practicing medicine and practice as an advocate after
    joining the Bar, (as I am doing), please remember that though one has
    to give up medical practice before starting practice of law, in terms
    of the judgment of the Supreme Court in (Dr.) Haniraj L. Chulani v.
    Bar Council of Maharashtra and Goa, decided on 8 April 1996, one can
    always revert to practice of medicine after informing the Bar Council
    that one is stopping the practice of law. Moreover, please also
    remember that a part time health or medical consultancy or a part time
    teaching assignment or writing a medical book does not amount to
    practice of medicine, which essentially means treating a patient. So,
    you are not a loser if you study law.

    --In case you want to become a health administrator, you will be a
    preferred candidate in the eyes of the employer because of your law
    degree.

    --If you become a medico-legal consultant (without joining the bar),
    you can earn extra income while continuing to practice medicine.All
    those doctors in Mumbai, whom I mentioned, are actually doing this.

    --If you join the Bar, there is ample scope in law to earn both
    respect and money through practice of law. When you start with law
    practice, you will have a specialty cut out for you (medico-legal
    cases). There is nothing to prevent you from practicing as any other
    lawyer as regards any other case.

    WHY YOU SHOULD NOT STUDY LAW?
    Frankly, I don’t have a single reason here.

    Dr M C Gupta
    13 May 2009

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  7. QUESTION--What are the guidelines for transfusions in cases of emergencies like severe post partum hemorrhage? i mean what is the role of cross matching and which emergency technique to follow?

    ANSWER—Legally, there are no specific guidelines for blood transfusion in specific situations. What is necessary in any therapeutic procedure,
    including blood transfusion, is not to do something which may be labelled as negligent. Transfusing blood without cross matching would ordinarily be held as negligent. When the emergency demands obtaining and transfusing blood
    without cross matching, the following procedure should be followed:

    a—There should be a noting on the case sheet signed by at least two doctors that “In view of the emergency situation and for saving the life of the patient, it is necessary to give blood to the patient immediately and, in order to save time, to request the blood bank to issue blood without cross matching at the earliest”.

    b—The written request to the blood bank should clearly state that blood may be issued without cross matching.

    c—Only the first bottle so obtained from the blood bank should be used without cross matching. A blood sample should be sent to the bank for the purpose of cross matching for any further bottles of blood needed.

    d—A prominent alert sign on the case sheet as well as the blood bottle should indicate: “UN-CROSS MATCHED BLOOD—WATCH FOR REACTIONS”.

    e—Medical and nursing staff should be instructed to closely monitor the transfusion and to take necessary action to stop it / give necessary
    treatment if untoward reactions occur. The monitoring observations should
    be recorded in a monitoring chart.

    [I understand that all this may not be possible to do at the time of the actual emergency. It can be written up soon thereafter. There are court decisions allowing this.]

    ****

    QUESTION--Can a treating doctor order for a unit of blood even if the cross matching has not been done yet?

    ANSWER—Yes, he can do so if the situation so demands. It is advisable to let it be a joint decision taken along with another doctor or nurse available at the moment and duly so recorded under their signatures. The blood bank must be specifically requested in writing to issue blood without cross matching.

    ***

    QUESTION--Who will be held liable in case a unit of blood issued without cross matching causes adverse reactions-- the treating doctor who has given the transfusion or the blood bank officer?

    ANSWER—If the safeguards mentioned above are taken, none of the two will be held liable.

    M C Gupta
    1 June 2009

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  8. QUESTION—When an animal tissue or organ is obtained and sent for pathological examination, in whom does the the ownership of the specimen
    lie: pathologist, laboratory manager, veterinarian or the owner of the
    animal?

    ANSWER—As per legal principles, the ownership of the specimen vests in the owner of the animal, unless he has transferred his rights to anybody else. Such question is likely to arise when there is a value attached to the specimen (It may have a rare attribute, such as a genetic marker; rare diagnosis; rare cell line that can be developed and marketed commercially,
    etc.).

    *******

    QUESTION—When an autopsy is performed, should the autopsy surgeon mention in detail what organs have been removed?

    ANSWER—Of course. Whatever is done must be logical and reasonable. Whatever is logical and reasonable in the opinion of the doer must be recorded by the doer so that what has been done may be authenticated as logical and reasonable in the opinion of peers and experts. If a treating surgeon is expected to maintain full surgical notes, including what all he has done and how, there is no reason why an autopsy surgeon should not make his own detailed notes. After all, an autopsy is likely to have tremendous legal value and autopsy records are actual or potential legal records. From that
    angle also, it is essential to keep detailed autopsy record, including the details of which organs have been removed.

    To take an example, suppose a person dies and there is a suspicion that he might have been a victim of illegal kidney theft, but it is not so in reality. Suppose the autopsy surgeon finds there are two kidneys and writes so in his autopsy report but removes one kidney on his own without recording this fact. Suppose the doubt about the kidney theft persists and a second
    autopsy is ordered, when only one kidney is found. The complications that would ensue can be readily imagined.

    In law, the golden rule is: record everything which may be relevant.

    M C Gupta
    1 June 2009

    =============

    QUESTION—When an autopsy is performed, should the autopsy surgeon take consent from the next of kin for removal and preservation of organs?

    ANSWER—The reply to this will depend upon who is getting the autopsy done.

    If the autopsy is being done at the request of the police in a medico-legal case, the permission of next of kin is not necessary. Even the permission of police would not be necessary. The autopsy surgeon is expected to do whatever is proper and necessary. What he does must be fully recorded.

    If the autopsy is being done at the request of the next of kin, it is better to obtain the permission for removal and preservation of any organs. It would be ordinarily be sufficient to obtain general prior permission like”
    “I hereby give permission for autopsy and also for removal and preservation and further examination of any tissues or organs as necessary”. Detailed record of the organs removed must be kept as part of the autopsy report.

    M C Gupta
    1 June 2009

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  9. QUESTION—What is the correct position about recognition by MCI of the
    qualification of FRCPath(UK), awarded after examination by the Royal
    College of Pathologists, London, after 11th November 1978?

    ANSWER—

    1--This question concerns interpretation of two different legal
    provisions on this subject.

    A—As per schedule 2 of the MCI Act, 1956, the above qualification
    obtained after 11th November 1978 is not recognised;

    B—As per the notification dated 7 March 2008 PUBLISHED IN PART II
    SECTION 3, SUB SECTION (II) OF THE GAZETTE OF INDIA Extraordinary),
    “All post graduate medical qualifications awarded in United Kingdom
    and recognized for enrolment as medical practitioners in the concerned
    specialties in that country” are now included in Part II of the third
    schedule, which lists the “ RECOGNIZED MEDICAL QUALIFICATIONS GRANTED
    BY MEDICAL INSTITUTIONS OUTSIDE INDIA NOT INCLUDED IN THE SECOND
    SCHEDULE”,
    2—There is an apparent contradiction between A and B above. The legal
    interpretation would be that
    the latter and specific law overrides the earlier and general law.
    Hence B would be deemed to nullify A.
    3-- CONCLUSION--I think that legally speaking, the position that the
    FRCPath(UK), awarded by the Royal College of Pathologists, London
    after 11 Nov. 1978 will not be recognised as a medical qualification
    is no longer valid.

    M C Gupta
    7 June 2009

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  10. QUESTION—I am in UK, having an MBBS degree from India and an FRCPath. from
    London, acquired after appearing in an examination after 11 November 1978.
    Would it be possible for me to apply for a post of assistant professor in
    teaching/academic institutions in India?

    ANSWER--

    1. As per my understanding of the law, YES. [This is presuming that you are
    not having an MD / DNB / Dipoma in pathology from India. If you have, things
    are even simpler].

    2. There are a large number of private medical colleges in India who are
    hard put to find suitable faculty. They will be glad to appoint you and pay
    you well.

    3. Once here, it won’t be a bad idea to acquire an MD / DNB / Dipoma in
    pathology, just in case.

    4. Even without (3) above, you are eligible for the post, as per my
    understanding of law. If, after you are appointed and working in your post,
    the employer wants to terminate your service because the MCI has objection,
    the best thing will be to file a writ in the High Court, which would almost
    certainly grant stay against termination. The case may take a few years to
    be decided. During that period, it might be a good idea to acquire an MD /
    DNB / Dipoma in pathology just to be on more secure ground, in case the HC
    may have different ideas.

    SUMMARY—From a practical point of view, the answer to your query is—YES.

    M C Gupta
    8 June 2009

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  11. QUESTION--

    I would appreciate your input on whether USA board certification in Pathology including super specialization are recognized by MCI and other
    private institutions?

    ANSWER—

    1--As per MCI Act / Schedule III (ii), the Certificate / Diploma awarded by
    the examining board

    American Board of Pathology is a recognised qualification.

    2—The authority to recognise or not a medical qualification vests with the MCI, not private institutions.

    M C Gupta

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  12. QUESTION--Can a doctor refuse treatment in a case of emergency? If a
    doctor refuses treatment in a case of emergency, can be sued under the
    law?

    ANSWER--The correct position is as follows. 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 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.
    However, it is true that as per the code of medical ethics, even if a
    doctor is not capable of properly treating a patient or is not willing
    to treat him for whatever reason, he should not hesitate to save his
    life by providing “emergency first aid medical support on
    compassionate humanitarian grounds”. Please note the words in inverted
    commas. The legal difference is that by providing “emergency first aid
    medical support on compassionate humanitarian grounds”, the doctor
    does NOT impose on himself the duty of care. In other words, the
    doctor-patient relationship does not get established. During my
    lectures, I advise the doctors to adopt the following practical
    approach—
    “If a roadside injury case or other emergency case comes and you are
    not in a position to take him in as a patient, even then you ought to
    provide “emergency first aid medical support on compassionate
    humanitarian grounds”and refer the patients onwards appropriately.
    However, you must make sure that it is clearly written on your
    prescription / referral notes as follows: “This patient came in an
    emergency. It is not feasible to undertake his treatment here. He is
    advised, in his own interest, to go to a properly equipped higher
    centre. However, ‘emergency first aid medical support on compassionate
    humanitarian grounds’ was provided to him as follows…………………….”
    Please make sure that a copy of the above note, signed by the
    attendants, is kept by you for future use.
    It may be mentioned that the confusion about doctors being legally
    bound to treat every case of roadside injury probably emanates from a
    wrong reading of the judgment in “Pt. Parmanand Katara Vs Union of
    India and Others”, decided on 28.08.1989. In any case, it says nothing
    of the sort. It does not lay down any new law. 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.

    M C Gupta
    15 June 2009

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  13. QUESTION— I have mediclaim policy from a company for the last six years, covering my individual family members. Now ICICI has approached me to switch over to their ICICI Pru Health Saver plan to pay premium for five years and get insured up to 75 age. Should I change?

    ANSWER—
    A—Generally, the no-claim bonus and other benefits for earlier clients are available only from the company with which you are currently
    insured. Switching of company would usually mean foregoing such benefits. This should be done only when there are definite reasons.
    You must critically examine the terms and conditions of the two companies to satisfy yourself that the new company is better and worth
    switching.

    B—Coverage till 75 years is not a special advantage. If you read up the policy bond of the old company, you would find that coverage is
    granted till 75-80 years. These policies are issued from year to year.As per law, the company cannot refuse to renew annually without definite reason.

    M C Gupta
    MD, LL.M.

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  14. QUESTION—Is it true that as per NACO guidelines, we should notdisclose the report of blood testing to the donor because we are testing a blood bag, not the donor.

    ANSWER—The statement attributed to the NACO does not find place in the National Blood policy, 2003, developed by NACO and available at the
    following URL—

    http://74.125.153.132/search?q=cache:YTD2c5FDa3wJ:www.nacoonline.org/upload/Final%2520Publications/Blood%2520Safety/National%2520Blood%2520Policy.pdf+NACO+blood+transfusion+guidelines&cd=1&hl=en&ct=clnk&gl=in

    Even otherwise, this statement is peculiar because-- ONE, it tends to promote secretiveness, which is just opposite of transparency in various dealings.

    TWO, it tends to state that doctors are concerned not with patients or humans but with their tissues or fluids alone, which would be against standard medical teaching.
    The NBP clearly states: 4.2.3 A Counsellor in each blood centre shall be appointed for pre and
    post donation counselling.

    4.2.4 Result seeking donors shall be referred to a Blood Testing Centre (BTC) for post donation information and counselling

    It is clear that- ONE, pre and post donation counselling by counsellors, specifically
    appointed at EACH blood centre, is mandatory;

    TWO, such counselling shall be given to all result seeking donors. [Please appreciate that the purpose of every blood testing is to let
    the person know whether he has any abnormality. However, there may be some donors who already know their blood test report through recent
    testing elsewhere and may, therefore, or otherwise, be not interested in seeking the result. As doctors, our policy and efforts should be to inform the test report to anybody whose blood has been tested.

    M C Gupta
    3 August 2009

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  15. QUESTION—Is there anything wrong if a non-medical person is appointed as senior scientific officer in a hospital?

    ANSWER—No

    QUESTION—Can a medical laboratory be run by a non-medical person?

    ANSWER—There is nothing wrong if a non-medical person owns, runs or heads a medical laboratory as long as the rules are being followed.

    QUESTION--Can anybody upload recent high court judgement regarding definition of a pathologist?

    ANSWER—The definition of a pathologist is given by the MCI, not by the high courts. The definition given by the HC has been accepted and used in many HC judgments, such as:

    The Bombay High Court issued the following interim orders dated 10 october2007 in PUBLIC INTEREST LITIGATION NO.28 OF 2005

    (Dr.Pratap Sitaram Patil & Ors. .. Petitioners

    Vs.

    State of Maharashtra & Ors. .. Respondents)

    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 and 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.

    QUESTION--Why the diploma holders can not be appointed as lecturers?

    ANSWER—Because this is not permitted as per the rules of the Medical Council of India.

    M C Gupta
    5 August 2009

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  16. Q1.--Can the state /central government make it compulsory for the private hospitals to treat the swine flu cases?

    A: Yes. Private hospitals are bound to do so in view of one or more provisions of the various Acts:
    --Indian Medical Council Act, 1956 read with Code of Ethics Regulations, 2002, made under the Act's A medical practitioner should not refuse to treat a patient without reasonable cause. There is no reasonable cause for private hospitals not to treat a certain class of
    patients.

    --Epidemic diseases Act's Section 2 authorizes the government, section 3 says non-compliance invites fine or imprisonment up to 6 months;
    section 4 lays down that no suit or other legal proceedings will lie against any person for anything done in good faith under the Act.
    --Court judgments whereby private hospitals that have been given various concessions by the government are bound to reserve a certain
    percentage of beds for poor patients as identified by the government or under guidelines given by the government.

    --Consumer Protection Act, 1986, where patients, who are potential beneficiaries of hospital services, can successfully move the court
    against denial of or deficiency in service.

    Q-2--.Are Isolation wards compulsory for the private hospitals?

    A: If principles of medical treatment and the prevalent standards of medical practice or any laws in force dictate that private hospitals
    should have isolation wards, not having them would be against law and hence having them would be deemed compulsory.

    ***

    Q: 3--.If the patients can be home quarantined & treated, why the private hospitals are wary of admitting them?

    A: Only the hospitals can answer that. It would be safe to assume that they want to avoid doing so because it will affect their finances and
    will increase their responsibility.

    (Ex-) Prof. M C Gupta
    MD (Medicine), MPH, LL.M.,
    Advocate & Medico-legal Consultant
    www.writing.com/authors/mcgupta44

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  17. QUESTION— A patient comes to a hospital with flu-like symptoms. He is advised symptomatic treatment and rest. No tests are for H1N1 are
    advised or carried out. He becomes critical or dies. What are the legal consequences?

    ANSWER—Assuming that the hospital has facilities for H1N1 diagnosis and antiviral treatment, or such facilities are potentially available
    to the patient, then not advising such investigations if they should have been advised as per the principles of medicine and the current
    medical practices and regulations, then this would amount to negligence, with attendant legal consequences, which may be of 3 types—Liability to pay of compensation in a consumer forum complaint; Liability for punishment by the Medical Council; Criminal liability.

    (Ex-) Prof. M C Gupta
    MD (Medicine), LL.M.
    Advocate
    19 August 2009.

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  18. QUESTION--Are you sure that doctors have legal and constitutional rights?

    ANSWER—Yes, I am sure that doctors have legal and constitutional rights. Fundamental rights are available to every citizen as per the
    Constitution. Legal rights are available to those citizens to whom the concerned law is applicable.

    ***

    QUESTION—Will the court not hesitate to give a judgment in favour of doctors since it will set a precedent for other professions?

    ANSWER—No. Courts will not hesitate. Court judgments are meant to serve as precedents.

    ***

    Question—We may have to explain to the court why there should be same pay for doctors for same work done when some states pay higher emoluments to doctors working in remote and difficult areas.

    ANSWER—Equal pay for equal work is a Constitutional mandate upheld by the Supreme Court. Incentives paid for difficult postings are in nature of a special allowance. They are not part of the basic salary.

    ***

    Question—Will not the Court say that health being a state subject, there is nothing wrong with different states paying differential salaries?

    ANSWER—This question has been decided by the Supreme Court long time back when it laid down the guidelines, including salary payable to residents under the Residency scheme formulated by it.

    ***

    Question—What will the doctors do if the government agrees to pay, say, Rs. 22000/- now and starts paying the same but, next year, cuts down the number of residents’ positions to half?

    ANSWER—Doctors will do nothing because nothing of this sort will happen or can happen in a democracy. In the hypothetical situation imagined by you, all medical degrees conferred by universities /
    medical colleges will lose recognition by MCI because the recognition of a medical college depends upon no. of beds, residents and faculty.

    ***

    Question— What will the doctors do if the court asks them uncomfortable questions like: Why doctors remain absent from duties? Why are they rude to patients? Why do they give preferential treatment
    to VIPS and journalists?

    ANSWER— Doctors will do nothing because the courts do not function that way. These are legally irrelevant questions. What is legally irrelevant is not considered by courts.

    Question— What will the doctors do if the court says that what residents are getting is a stipend, not a salary since they are under training?

    ANSWER— Doctors will do nothing because they are NOT stipendiaries in terms of the Supreme Court judgment referred above.

    M C Gupta
    29 August 2009

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  19. QUESTION--Are private hospitals allowed by law to conduct autopsies in Medico-legal cases or they have to hand over the body to public Hospital in such cases?

    ANSWER—In a medico-legal case, the request for autopsy is made by the police to a hospital. The hospital must be authorised to conduct autopsy in a medico-legal case by the government by general or special order. General order would include a list of hospitals on a zonal basis whereby police stations in a particular zone are required to
    send the bodies for autopsy to designated hospitals. Special order would include a specific order by the government to get the autopsy
    conducted at a specific hospital, say AIIMS, irrespective of the zone.
    Nothing prevents the government from ordering the autopsy to be conducted at a private hospital in special circumstances. However, government would, in general, be reluctant to do so because the fear
    that the report coming from private experts may not be impartial is a genuine one.

    QUESTION— If a patient designated as a medico-legal case dies in a government hospital which has no facilities for autopsy and the body is sent to another government hospital for autopsy, does the first hospital have a right to receive a copy of the autopsy report?

    ANSWER—No. There is no such right. The autopsy report in a medico-legal case is vital legal evidence that can be revealed to any person only as per law under orders of the competent authority.

    --
    (Ex)Prof. M C Gupta
    MD (Medicine), MPH, LL.M.,
    Advocate & Medico-legal Consultant
    www.writing.com/authors/mcgupta44

    ReplyDelete
  20. QUESTION-- The matter that Physiotherapists, Naturopathy, dieticians writing `Dr.' is a matter of concern. But unfortunately, in India,
    there is no law which defines who can write `Dr' in front of their names. Even Medical Council of India does not clarify this subject.

    Are paramedics authorised to use the title "Dr”?
    Can practitioners of Indian System of Medicine use it? If no then what can be done about it?

    ANSWER—
    1-- Physiotherapists, Naturopathy practitioners, dieticians etc.cannot use the word Dr., except if they happen to have a PhD degree.

    2--ISM practitioners can legitimately authorised to call themselves as doctors in view of their qualifications. [If they have no qualifications but still practising, they are quacks].

    3—Paramedics are not so authorised.

    4—Possible actions against misuse:
    a—Complain to District medical authorities.
    b—Complain to police.
    3—Complaint to consumer court

    4—Complaint to medical council. [Delhi Medical Council Act, 1997, has
    specific provisions against quackery. A physiotherapist or dietitian
    calling themselves as Dr. can be pleaded as quackery.
    5—Complaint to Nursing Council; Pharmacy Council; Physiotherapy
    Council etc. if such qualified persons are calling themselves as Dr.
    6—Writ in High Court.

    All the above are possible legal procedures. Success depends upon how well a case is legally prepared and pursued. The practical problem is
    that lawyers need fees for work and individuals don’t want to pay to lawyers. The funds are available with IMA and branches, who should be
    active in this area, but they have other priorities of a personal and political nature.

    M C Gupta
    MD, LL.M.
    Advocate
    16 October 2009

    ReplyDelete
  21. QUESTION—What can the medical profession do to curb the practice of quackery?

    ANSWER—Doctors cry a lot about quackery. What are they doing about it, except crying and blaming the government, the quacks, the public which goes to quacks, and everybody else, except themselves? They are doing nothing. Here is what they can do:

    1--INDIVIDUAL DOCTORS—

    ONE--Every doctor should abide by the following regulation given in the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002, which can be viewed at
    http://mciindia.org/know/rules/ethics.htm

    1.4.1 Every physician shall display the registration number accorded to him by the State Medical Council / Medical Council of India in his
    clinic and in all his prescriptions, certificates, money receipts given to his patients.

    When all doctors start displaying it prominently, the public shall get sensitized and will, on its own, look for the registration number of the doctor, just as everybody routinely looks at the price and expiry
    date whenever one buys a drug.

    TWO--Doctors should also make active and liberal use of the following regulation:

    1.7 Exposure of Unethical Conduct: A Physician should expose, without fear or favour, incompetent or corrupt, dishonest or unethical conduct on the part of members of the profession.

    7. MISCONDUCT :
    The following acts of commission or omission on the part of a physician shall constitute professional misconduct rendering him/her
    liable for disciplinary action

    7.1 Violation of the Regulations: If he/she commits any violation of these Regulations.

    7.3 If he/she does not display the registration number accorded to him/her by the State Medical Council or the Medical Council of India
    in his clinic, prescriptions and certificates etc. issued by him or violates the provisions of regulation 1.4.2.

    2—IMA AND ITS BRANCHES--

    ONE—They can strongly persuade doctors to write their registration no. along with their name. The easiest way to ensure this will be for the
    IMA and its branches to pass an official resolution and make a rule that those doctors who don’t display their registration number will be ineligible to stand for or hold any post in the executive committee. This will have a magical effect that will cascade down to all levels. [But, I have a strong hunch that doctors themselves will shoot down such a proposal—which simply means that all aspirants for posts should
    abide by the Code of Medical Ethics Regulations!

    TWO—They can prepare a list of doctors who are not writing their registration no., can issue them a notice to rectify it within six
    weeks, and, on failure to do so, can make an official complaint against them to the Medical Council for professional misconduct. The
    effect will be electrical. But, here, again, I have a hunch they would never do it. They are too busy in their group fighting.

    3—MEDICAL COUNCIL—They can very easily implement this rule by publishing a notice in the newspapers asking all doctors to abide by
    Regulation 1.4.1 and asking them to confirm that they have done so by writing a confirmation letter on their letterhead which should bear
    the printed registration number and/or the rubber stamp carrying such number. Within three months, there will be no doctor in India without
    his number on his letterhead / rubber stamp. But will the medical council do so? They have no shortage of funds. Delhi Medical Council
    has enough funds to advertise twice a year in newspapers legally useless warnings / notices, asking all doctors in Delhi, illegally, to
    get registered with it even if they are registered with another medical council. They have funds, but no will to implement their own
    code!

    M C Gupta
    MD (Medicine), LL.M.
    Ex-Professor
    Practising advocate
    29 October 2009

    ReplyDelete
  22. QUESTION: What are your comments on the following news article in Tribune, datelined 30 October 2009, which can be viewed here—
    http://tribuneindia.com/ The news item titled "PART I� Patients or victims?--A shocking tale of private healthcare” is written by Chitleen K Sethi.

    The brief details are:
    A truck driver took his wife to a big corporate hospital for treatment of wound infection. She died after 10 days. The husband had to sell his property to pay the Rs. 6 lakh bill, otherwise the hospital refused to release the dead body. The antibiotics and other medicines etc. used were substandard and of doubtful efficacy, but the cost billed to the patient was exorbitant”.

    ANSWER--
    Seeking the services of a corporate hospital and lamenting high charges FIRSTLY, no one has any business to seek a costly item and then dither at the time of paying it. SECONDLY, the beneficiary of hospital service can make a representation against exorbitant charges
    and refuse to pay them. A good advocate may be able to get relief.

    Not releasing the dead body till payment is made. This is illegal. A police complaint will see the body released.

    Charging too high a price for stent etc. This can be legally managed, but will need some leg work and legal fees. Most service beneficiaries are not willing to undergo all this. Using substandard medicines and equipment. Same as 3 above. Also, while blaming the corporate sector is fine, let us not forget that the doctors working in the hospital, including the medical superintendent, are all a party to this illegality.

    Laws: The legal recourse mentioned above would involve CPA; IPC; MCI Act; Hospital / Nursing Home Registration Act; Constitution [Article
    226 for filing writ petition in HC].

    M C Gupta
    MD (Medicine), LL.M.
    Ex-Professor
    Practising advocate
    31 October 2009

    ReplyDelete
  23. ANSWER: Whether you cancel the deal or wait for the delivery of the machine is up to you. Since there are reports that the functioning of this machine is unsatisfactory and since other pathologists have advised you not to buy
    this machine, you should keep that in mind.

    If you decide not to buy, then you must cancel the deal immediately. You must send them a proper notice of cancellation, asking them to refund the money immediately, along with interest, giving them, say, 3 weeks time for
    refund. It is advisable that the notice should be drafted by an advocate.

    If three weeks elapse and you dont get back the money, file a case in the District Consumer Forum. I think it will be decided in your favour without any problem.

    If you receive a reply to your notice, it would be advisable to consult your advocate about it.
    If the machine is delivered to you after you send the notice, DO NOT take delivery of the machine (if you have decided in your mind that you dont want the machine).

    M C Gupta
    MD (Medicine), LL.M.

    ReplyDelete
  24. QUESTION Aspiration FNAC was done on a patient. Only a single good representative FNAC smear is available. Should it be given to the patient so
    that he may get it reviewed elsewhere? Or, should we keep it with us in the the lab to save our backs?

    ANSWER It is the patient's right to seek a second opinion. Not giving the smear to him for this purpose would amount to denying a legal right. If the patient asks for the smear for this purpose, he should be given the same
    with proper safeguards as below:

    A: Get the slide reviewed by another pathologist and get his opinion in writing. If it is same as the earlier opinion, well and good; If it differs, get a third opinion. Depending upon the circumstances, there would be no harm in asking the patient to pay for these extra opinions. But, even if the patient does not pay for the same, it is safe to get these other opinions
    under your own arrangements.

    B: Before handing over the slide to the patient, get from him the following--

    a)Written request from the patient, stating the purpose for which he needs it;

    b)Written statement from him that he has been explained and has understood the risk involved [Loss of the slide or its smear getting spoiled, making it impossible for a future review, in the absence of which the proper treatment of the patient may suffer, since this is the only smear available].

    c)Undertaking from him that it will be returned within a specific period, mentioned clearly;

    d)Undertaking from him that he has understood the instructions about its proper storage / handling. These instructions should be given to him in writing.

    e) Acknowledgement that he has received it in intact and proper condition, signed by 2 witnesses.

    M C Gupta
    MD (Medicine), LL.M.

    ReplyDelete
  25. QUESTION--I have done MD, DNB in Anaesthesia and am currenty working in the clinical research industry. I want to study law (LLB), but I
    am under the impression that it has to be a full time course. Hence, it would mean that I will have to give up my job to do this course. Is
    there is any way to do this by correspondence? Please advise.

    I would like to know the prospects of starting practice in a court of law. I was told that the field of legal practice is very competitive
    and hence it is extremely difficult to break into this profession. I would be grateful if you could advise me on the same.

    ANSWER—
    1—There is no distance learning course leading to the degree of LL.B. However, there are evening law colleges for those who are in a job.
    One need not give up the job.

    2—It is true that legal profession is competitive. It will not be so for you because you can start as a specialist from day one in an area where there are very few persons. If you start as a an advocate specializing in medico-legal cases, with clinical research thrown in,
    you have a decidedly bright and paying future ahead. This is the time when medical malpractice cases are rising fast and there is a vacuum.
    You can go ahead without worries. You may even have good prospects of earning from USA, either as outsourced consultancy or as collaborative
    practice (Foreign legal firms are likely to get a foothold in India in years to come) or after relocating there. Lawyers earn pretty well in
    USA. Also, LL.M. course is likely to be reduced to one year in India. It is already a 1 year course in USA.

    However, you need not confine only to medico-legal cases. You can practice general law also and it is quite paying.

    M C Gupta
    MD (Medicine), LL.M.
    Ex-Professor
    Practising advocate
    20 November 2009

    ReplyDelete
  26. QUESTION-- Are there any specific guidelines from the MCI regarding preservation of paraffin blocks and glass slides which can be quoted
    in a court if reqd. ?

    ANSWER: No. There are none. However, MCI guidelines for preservation of medical records are that they should be preserved for a period of
    three years.

    M C Gupta
    MD (Medicine), LL.M.

    ReplyDelete
  27. QUESTION—As a doctor, I believe that the Consumer Protection Act is loaded against doctors. Anybody can a file a claim without any sensible reason and onus lies on you to prove that you are not guilty ! You may finally win the case after spending lot of tension and time .But no compensation to you and no punishment to complainant for wrongs done !

    ****
    ANSWER—
    You are not correct. The facts are as follows:
    1--Nobody can file a claim without a sensible reason.The Supreme Court judgment in Martin F. D'Souza v. Mohd. Ishfaq, decided on 17
    February, 2009, has clearly laid down that no cognizance of a complaint of medical negligence can be taken by the consumer Forums /
    Commissions in the absence of a report from a doctor or committee of doctors certifying that there was negligence.

    2--Onus to prove negligence lies upon the complainant, NOT the other way round.

    3--There is a provision in the Consumer protection Act to award a fine for frivolous complaints.The maximum fine that can be levied is Rs.10,000. Courts have used this provision in some cases

    M C Gupta
    MD (Medicine), LL.M.

    ReplyDelete
  28. QUESTION-- Legally, in India, what is definition of a medico-legal case? How can a Casualty Medical Officer decide whether a particular
    case /emergency is a Medico-Legal case?

    ANSWER—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 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.

    M C Gupta
    MD (Medicine), LL.M.
    Ex-Professor
    Practising advocate
    9 December 2009

    ReplyDelete
  29. QUESTION-- While discharging a Medico-legal case patient, what is the protocols that the hospital/consultant in-charge needs to follow?
    (informing the police in case (a)the patient was not under police custody, (b) the patient was under police custody, and (c) patient was
    under judicial custody (a court case is running).

    ANSWER—When a patient has been admitted to hospital and has been officially labeled as a medico-legal case and police has been
    informed, it is the job of the police to take any further necessary action. However the hospital should take care to inform the police
    when a major event takes place, such as the following:

    --A patient who was not fit for giving statement to police earlier becomes so fit;

    --A patient becomes critically serious or dies;

    --A patient attempts or commits fresh crime—assault, rape, suicide (Refusal to eat may be construed as attempt to suicide, but refusal to
    take treatment cannot be so termed. Refusal of treatment is a patient’s right.)

    --The patient, being a woman, delivers;

    --The patient is proposed to be taken to OT or is operated;

    --Subsequent to admission and initial police report, fresh evidence of legal importance emerges, such as detection of a foreign body on x-ray / surgery; receipt of a crucial lab. Report such as blood group, DNA report etc.

    --The patient is proposed to be discharged / transferred.

    The hospital is liable to take any action only when the patient is only in its custody (physically admitted in the hospital). The
    hospital is not liable when the patient is not in its custody. Police custody means that the patient is in the hands of the police in the
    police station / interrogation centre etc. Judicial custody means that the patient is in jail.

    M C Gupta
    MD (Medicine), LL.M.
    Ex-Professor
    Practising advocate
    9 December 2009

    ReplyDelete
  30. QUESTION— What method should be adopted to inform the police when a medico-legal case admitted in the hospital is being discharged? More specifically:

    --Is mere a telephone call is enough? From whom? Can any doctor in the hospital inform? Should it necessariliy be the Consultant In-charge or
    Casualty Medical Officer or any Resident Doctor? Will a call from any front desk executive be sufficient?

    --- Should the patient be held from leaving the hospital premises till police arrives?

    ANSWER— The guidelines in this regard are as follows:

    ONE—The hospital must inform the police that a patient admitted as a medico-legal case is proposed to be discharged from the hospital, so
    that the police may take any necessary action before such discharge.

    TWO—There must be reliable proof that such information has been given. The best proof is written information with written acknowledgement. If written information is not possible or feasible due to any reason,
    telephonic information would be sufficient as long as there is proof. The person making the telephone call should keep a record of the
    following: time; number called; name and designation of the person attending the call / receiving the information; exact message
    transmitted to him and his response; name and signature of a witness that such call has been made.

    THREE—The information is from the hospital to the police. It is better and more convenient for the individual doctors to keep away from it.
    Let the call be made by the hospital administrative authorities. The level of that authority does not matter as long as it is a recognized authority.

    FOUR—No patient in the hospital can be held by the hospital against his will. If there is proof that police has been informed and if the
    police do not take any action within reasonable time, the hospital would be at liberty to discharge the patient.

    M C Gupta
    MD (Medicine), LL.M.
    Ex-Professor
    Practising advocate
    9 December 2009

    ReplyDelete
  31. QUESTION--Law clearly says that the legal heir/near relatives can demand post mortem. In practice, it poses a great problem. It is very
    difficult to ask the police to come and take the body to civil/govt hospital for autopsy when the patient who died was not a medico-legal
    case but the relatives wish to get the PM done for legal purposes (to file a case in a court of law). On the other hand, the govt/civil
    hospitals do not accept the body for PM unless the police come and establish the identity of the deceased.

    Can you please give some advice in this connection?

    ANSWER—In this connection, the following might help: a—Nowhere does law clearly say that the legal heir/near relatives can demand post mortem. There is no question of demanding. Hospitals are providers of services for consideration, which is usually in the form
    of fees / hospital treatment charges. Performing autopsy is a specialized service which cannot be provided free by the hospital, even if it is assumed that the treating hospital has facilities for the same. It is true that anybody who gets his patient treated in a hospital and has reason to believe that the patient has died because of a criminal act in the nature of negligence or foul play has a right to report the occurrence of such alleged crime to the police and lodge a complaint, requesting the police to arrange for an autopsy to serve as evidence of crime before the body is cremated. It is for the police to register the complaint and take necessary action on it, including arrangements for autopsy.

    b—The above is strictly a matter between the patients’ relatives and the police. The hospital has no role in this. However, the hospital
    can be reasonably expected, though not legally bound, to facilitate the contact between the relatives and the police (by providing
    facilities for telephone or commutation etc., if feasible).

    I think the perceived problem and difficulties faced by you are a result of an impression in your mind that the relatives can “demand”
    an autopsy from the treating hospital and the latter is legally bound to fulfill such demand by contacting the police. It needs to be
    clearly understood that the onus to make a report to the police lies upon the relatives. The hospital may for practical reasons, prefer to
    help in this,but this does not shift the onus from the relatives to the hospital.

    M C Gupta
    MD (Medicine), LL.M.
    Ex-Professor
    Practising advocate
    10 December 2009

    ReplyDelete
  32. QUESTION—Can a private hospital conduct an autopsy for elucidating the cause
    of death or for other academic reasons, there being no police case? Does it
    need permission from the government? Can it get the autopsy done at request
    in a government hospital?

    ANSWER—An autopsy is a matter between the hospital and the relatives of the
    deceased.The government does not come in the picture. There is no question
    of permission from the government. Similarly, the private hospital is free
    to request any other hospital, govt. or non-govt., to carry out an autopsy
    for a patient who died in the hospital.

    However, the following precautions need to be observed:

    a—There must be written request / consent from the relatives.

    b—Proper record of autopsy must be kept on the lines of a regular
    medico-legal autopsy. The reason is that a law suit may be filed later on by
    the relatives alleging negligence. The records must, therefore, be
    maintained. These must be signed by all the doctors constituting the autopsy
    team. Written permission of the Medical superintendent / hospital
    administrator must be there before the autopsy is performed.

    c—If any organs are taken out, this must be done after written permission of
    the relatives. Such permission should be obtained at the time when they give
    consent for autopsy. Proper record must be maintained about the organs
    removed.

    d—After the autopsy, the body should be handed over to the relatives against
    a written receipt wherein the relatives should state that the body has been
    received in a satisfactory condition. This is to avoid later allegations of
    negligence during autopsy or removal / stealing of organs.

    e—It would be permissible in law to combine autopsy with organ donation with
    prior consent. 9This should, in fact, be encouraged).

    M C Gupta, MD (Medicine), LL.M.

    ReplyDelete
  33. QUESTION—Is it a valid argument that since the government spends a lot
    on medical education, the doctors must submit to work in areas where
    they are needed, such as the rural areas?

    ANSWER—The argument is valid in principle but not valid in practice
    for the following reasons:

    a—Those with pull and power will always manage to avoid rural service
    on artificial grounds created in connivance with the administrative
    and political authorities and only the ordinary doctors with no
    approach will be made to work in rural areas. A workable suggestion in
    this regard is that on successful completion of the medical course,
    doctors should be given license to practice only temporarily for a
    period of 10 years, which should be renewed only if the doctor has
    completed rural service, if offered, for a period of one year. This
    should be implemented after an amendment of the MCI Act or Rules /
    Regulations, as appropriate, so that none can escape it regardless of
    personal or political approach.

    b—Such a step will apparently be selective and hence discriminatory.
    Doctors are not the only professionals who are in shortage in certain
    areas. Other examples are the shortage of army officers; shortage of
    teaching faculty in engineering colleges, though there is no dearth of
    engineers passing out from IITs. Students who are eligible to fillsuch
    shortages and who have been trained in government institutions should
    likewise be subject to forcible recruitment for such service.

    M C Gupta
    MD (Medicine), LL.M.
    Ex-Professor
    Practising advocate
    13 December 2009

    ***************************************

    QUESTION—In view of the fact that doctors are opposing the government
    move for compulsory rural service at the end of the MBBS course, is
    there an alternative that may be acceptable to doctors?

    ANSWER—Yes. There is an alternative. The same result can be achieved
    by granting temporary medical council registration to doctors for a
    period of 10 years on completion of the medical course with the
    stipulation that during these ten years, the doctor will have to work
    in a rural area for one year and that the renewal of medical council
    registration after the period of 10 years will be subject to such
    rural service. As a matter of fact, the Tamil Nadu Government Doctors
    Association has already suggested that such a scheme should be
    implemented and the government move for compulsory rural service at
    the end of the MBBS course should be
    dropped.[http://www.tngda.com/2009/02/do-not-make-service-in-rural-areas.html].
    Such suggestion has additional merit that it does not leave the
    medical care of the rural people to fresh inexperienced doctors but
    rather makes it possible that doctors with a few years of experience
    may be available to work in rural areas.

    M C Gupta
    MD (Medicine), LL.M.
    Ex-Professor
    Practising advocate
    13 December 2009

    ReplyDelete
  34. QUESTION--Is it a workable suggestion that rural service should be
    made compulsory for two years after passing MBBS?

    ANSWER--I do not think such a scheme will succeed in addressing the
    problem of scarcity of doctors in rural, remote, hilly and tribal
    areas. The reasons are listed below:

    1--The scheme itself will be open to challenge in a court of law on
    the ground that it is violative of the fundamental right granted under
    Article 19 of the Constitution to engage oneself in any profession in
    any part of India. There can be no justifiable reason to force a young
    doctor to translocate to an area where he does not want to go.

    2--The scheme wrongly pre-supposes that adequate jobs will be
    available to doctors in rural areas. It is a well- known fact that
    there are more unemployed doctors at present than the government jobs
    available. As late as June 2009, the Chief Minister of Jammu and
    Kashmir promised tostriking doctors demanding jobs that he would
    create more jobs for unemployed doctors
    [http://www.theindiapost.com/2009/06/30/posts-will-be-created-for-unemployed-doctors-omar/]

    The situation is not different in other states or in India as a whole.
    As a matter of fact, unemployment among doctors is nothing new or
    confined to India. As long back as 1979, the BMJ published an article
    by R. G. Wilkins, titled as “Unemployed Doctors” [The British Medical
    Journal, Vol. 2, No. 6193 (Sep. 29, 1979), p. 800].Likewise, in
    neighboring Pakistan, SA Zaidi reported as far back as in 1987 that
    11,000 doctors were unemployed-- http://www.jstor.org/pss/4377760

    3—The scheme ignores the fact that the answer to the problem of
    scarcity of doctors in rural areas lies not in forcing them to go to
    such area but in making such areas attractive enough for them by
    providing basic amenities there. The cause of scarcity of doctors in
    rural areas is not unknown, nor unique to India. Young and Leese in UK
    have shown that the supply of gene ral practitioners in a given area
    reflects differences in local living and working environments and that
    the difficulties are greatest in deprived areas.[Young R, Leese B.
    Recruitment and retention of general practitioners in the UK: what are
    the problems and solutions? Br J Gen Pract. 1999;49:829–833].

    4—The scheme ignores the basic reason why doctors are concentrated in
    urban areas. Doctors will naturally locate themselves where hospitals
    are located. No doctor would like to work in an area where he has no
    means of getting admitted patients in the hospital when the disease so
    warrants. . When 85% of hospital beds are in urban areas [Adrian
    Hastings and Mohan Rao: “Doctoring deprived areas: Cannot rely on
    exceptional people”-- BMJ. 2001 August 25; 323(7310): 409–410], it is
    arithmetically inevitable that doctors would be concentrated in urban
    areas. This situation is a creation of the government itself due to
    selfish or political or extraneous reasons or, simply, wrong planning.
    The government itself has deprived the rural areas of medical
    facilities by establishing medical colleges and hospitals mainly in
    the urban areas. Rather than recognize and own up and redress its own
    fault, the government unjustly, unfairly and, almost immorally, keeps
    on blaming the doctors for the skewed distribution in urban and rural
    areas.

    M C Gupta
    MD (Medicine), LL.M.
    Ex-Professor
    Practising advocate
    12 December 2009

    ReplyDelete
  35. Question: There is a rumor floating in pathology circles of some part of Kolkata that NABL approval is becoming mandatory for diagnostic laboratories registered under clinical establishment act, Govt. of West Bengal. I think this is a rumor. What is the actual status in other states ?

    RESPONSE--

    1-- I think it is just a rumour. My hunch is it will not happen for a few
    years at least.

    2-- The new All India Medical Establishment Bill is in the pipe line. I
    don't think any state government will be too keen to jump the queue in this
    direction.

    3--It has not been possible to stop the mushrooming labs. run by DMLTs in
    various states in spite of moves for the same. Writs have been filed in many
    High Courts in this regard and an appeal is pending in the Supreme Court
    also. In the circumstances, mandatory NABL certification is a far cry.

    M C Gupta

    ReplyDelete
  36. QUESTION—What are the possible legal and other implications of the
    recent announcement by the Health Minister that the government has
    decided to introduce a shortened 4-year medical course for rural
    medical doctors?

    ANSWER—The news report regarding the announcement is given below. It
    may be summarized as follows: “IMC Act, 1956, has been amended to to
    facilitate opening of medical colleges and institutes in the rural
    areas. The ministry has finalised a four-year course (3 years plus 1
    year house-job) to create another cadre of medicos, recognised by the
    MCI, who would be below the present MBBS doctors. These medicos would
    mandatorily serve only in the rural areas.”

    Presuming that the above summary / news item is correct, my comments
    are as follows:

    LEGAL IMPLICATIONS—It would be unlikely that anybody would challenge
    the govt. policy / proposal or the IMC Act amendment in a court.
    Neither are their any obvious illegalities in them, nor is anybody
    apparently adversely affected.

    OTHER IMPLICATIONS—

    a—This measure would improve healthcare in rural, remote and tribal
    areas. Paucity of qualified doctors in such areas will be reduced.
    Health and medical care will become more accessible to people in such
    areas.

    b—It will improve infrastructure in rural areas through more medical
    colleges, hospitals, housing, roads, electricity, water supply,
    communications, schools etc. This will help decrease poverty in rural
    areas.

    c—It will decrease migration from rural to urban areas because earning
    potential and job creation in rural areaswill be enhanced.

    d—It will improve administration in general. Rural postings will be
    less likely to be avoided by employees in general.

    e—It will effectively counteract the menace of quackery to a
    significant extent, where quackery is defined as practice of
    allopathic medicine by those not qualified in this system.

    f—Through improvement of rural infrastructure in general and medical
    academic and professional infrastructure in particular, including
    expected decrese in quackery, it will encourage MBBS doctors to settle
    / work in rural areas.

    g—It will raise the status of MBBS doctors from that of the lower-most
    rung to one above.

    h—By making available another qualified cadre of doctors, it will
    decrease the present trend in private hospitals to employ
    non-allopathic doctors because higher salary has to be paid to MBBS
    residents.

    -- M C Gupta
    MD (Medicine), LL.M.
    Ex-Professor
    Practising advocate
    24 December 2009

    ReplyDelete
  37. QUESTION--Can a hospital make it mandatory to get investigations done only from the hospital?

    ANSWER--Strictly speaking, from a legal point of view, the answer is No. However, the hospital has a right to rely or not on the reports of such investigations and to advise, for stated reasons, that the proper treatment of the patient needs investigations from a reliable source like that of the hospital concerned.

    I may add that I have not yet come across a case, in my own practice or otherwise in legal literature, where the such a complaint was brought before the court.

    -- M C Gupta

    ReplyDelete
  38. QUESTION--Can a hospital make it mandatory for the patients to buy medicines from their own hospital pharmacy by incorporating this condition
    in the hospital rules and *
    *discharge the patient if he does not follow this rule?*

    *ANSWER--*

    When a person seeks the services of a hospital, he is seeking to buy the services of medical treatment provided by the hospital. The hospital is a provider / seller of such service and the patient is the consumer / purchaser of such service. There is a contract between the hospital and the patient to sell / purchase such service for consideration (price). There is
    no contract to sell / buy any goods (medicines) from the hospital. The hospital cannot enforce a contract that does not exist.

    If the hospital consent form includes a provision that the patient would buy all medicines only from the hospital pharmacy and that if he purchases drugs prescribed by the hospital from some other source, he would be discharged forcibly, such contract would be held by courts as an illegal contract. An illegal contract cannot be enforced.

    If a hospital undertakes to treat a patient but imposes a condition that the medicines must be bought by the patient from the hospital pharmacy, this would be held in law as an "unfair and restrictive practice", which is
    against the provisions of the Consumer Protection Act, 1986.

    Forcibly discharging a patient who is in need of continued treatment will be a clear violation of the Code of Medical Ethics Regulations, 2002, for which the Medical Council will be justified in punishing the concerned doctors.

    Forcibly discharging a patient who is in need of continued treatment may result in death or serious injury to the patient and the patient can lodge a criminal complaint with the police or the magistrate for criminal negligence, alleging that it was gross negligence.

    Such a complaint would be likely to be decided against the doctors and they can be awarded criminal punishment (imprisonment).

    Forcibly discharging a patient who is in need of continued treatment may result in cancellation of the registration of the hospital under the Nursing Home Registration Act of the State concerned if the patient makes a complaint to the Health Directorate of the State.

    -- M C Gupta
    MD (Medicine), LL.M.

    ReplyDelete
  39. QUESTION--Can you please guide whether Hospital is considered as an Industry by the Law? Is there any supreme court ruling on this aspect?

    ANSWER— The Industrial Disputes Act, 1947, was amended in 1982 and hospitals and dispensaries were thereby excluded from the definition
    of the term Industry.

    However, the matter is not as simple as this. The Industrial Disputes Act, 1947, is not the only act related to industry. For a proper
    understanding of the issue, it is necessary to provide a brief account of the Industrial Disputes Act, 1947, and the various court judgments on this topic.

    THE INDUSTRIAL DISPUTES ACT, 1947:

    Section . 2(j) of the Industrial Disputes Act, 1947, defines industry to mean a business, trade, undertaking, manufacturing or
    calling of employers and includes any calling, service, employment handicraft or industrial occupation or avocation of workmen. However,
    in common parlance, ‘industry’ is understood to signify an organised activity involving group of workers for manufacturing, trade or
    business. There is an apparent conflict between the common perception and the legal definition of industry as per the Industrial Disputes
    Act, 1947. It is a basic principle of law that courts have to rely upon the exact wordsin the statute when pronouncing a judgment.

    SUPREME COURT JUDGMENTS
    In D.N. Banerji vs. P.R. Mukherji (1952 INDLAW SC 62, AIR 1953 SC 58),
    the question before the court was whether a municipality may be considered an industry. They applied what was later called the‘Analogous Activity Test’, according to which the definition under s.2(j), that is, ‘any undertaking or calling’ must be understood to
    mean such undertaking or calling which is ‘analogous to the carrying on of a trade, business or manufacture’. Thus a municipal corporation was held to be an ‘industry’ even though it was engaged in sanitation
    and conservation without any profit-motives or investment of any capital, which were held irrelevant for an industry.

    In State of Bombay vs. Hospital Masdoor Sabha (1960 INDLAW SC 47, AIR 1960 SC 610.), an industrial undertaking was held to imply any ‘
    systematic activity’ undertaken for production or distribution of goods or services ‘to the community at large’ with the help of employees. Hence, hospitals were held to come under the definition of industry

    In Corporation of the City of Nagpur vs. Its Employees (1960 INDLAW SC 90, AIR 1960 SC 675.), the analogous test laid down in Banerji Case
    was further modified The different departments (namely health, education, tax and general
    administration) of a municipality were held to be industry. The court observed that the emphasis is more on the organised activities
    implicit in trade or business than to equate the other activities with trade or business. . With regard to the question of sovereign and
    non-sovereign functions of the state, the court held that the ‘predominant functions’ will be the criteria for ascertaining its
    true nature.

    contd ... below

    ReplyDelete
  40. In The Management of Safdarjung Hospital, New Delhi vs. Kuldip Singh Sethi (AIR 1970 SC 1407), a six judge bench unanimously held that
    Safdarjung Hospital was not an industry, as the activities carried on by the hospital were not analogous to the carrying out of trade or
    business, the main activity being imparting of training, research and treatment. The court reiterated that the activity ‘must bear the
    definite character of trade or business or manufacture’ or must be capable of being described as on resulting in material services to the community at large. This overruled HMS where hospital was held to be an industry.

    In Bangalore Water Supply And Sewerage Board Vs. A. Rajappa (1978 Indlaw Sc 260, Air 1978 Sc 548.), a seven judge bench overruled a
    number of cases, including the Management of Safdarjung Hospital, New Delhi vs. Kuldip Singh Sethi case. A “triple test” was laid down
    according to which an undertaking is an industry where there is:

    “(1) systematic activity;
    (2) organised by co-operation between employer and employee; and
    (3) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes.”

    It was held that ‘absence of profit motive of gainful objective is irrelevant be the venture in the public, joint, private or other
    sector. The true focus is functional and the decisive test the nature of the activity with
    special emphasis on the employer-employee relations’. It was held that the running of
    hospital is a welfare activity and not a sovereign function and hence is an industry. Hospital facilities, research products and training services are ‘services’ and absence of profit or the performance of functions of training and research, would not take the institution out of the scope of industry. Therefore HMS was affirmed while Safdarjung
    Hospital was overruled.

    NOTE—After the Bangalore Water Supply case, there seems to be a gradual shift from the acceptance of such a liberal expansion of the
    ambit of IDA.
    -- In Coir Board, Ernakulam, Cochin vs. Indira Devi (1998 INDLAW SC
    1627, AIR 1998 SC 2801), the court refused to accept that ‘such a sweeping test was contemplated by the Industrial Disputes Act or that ‘every organisation does useful service and employs people may be labeled as industry’

    It recommended that the definition needs to be re-examined.


    --In State of Uttar Pradesh vs. Jai Bir Singh (2005 INDLAW SC 766,(2005) 5 SCC 1),

    the underlying reasons for this change in attitude have been adequately addressed. These reasons are based upon two basic grounds:

    (1) that the decision in BWS was not unanimous; and
    (2) the rejection of doctrine of noscitur-a-sociis (A word is known
    by the company it keeps--When a word is ambiguous, its meaning may be
    determined by reference to the rest of the statute).

    Contd ... below

    ReplyDelete
  41. DELHI HIGH COURT JUDGMENTS

    In 2001, while deciding a petition by Indraprastha Medical Corporation Ltd's (Apollo Hospital), against the applicability of Industrial Employment (Standing Order) Act, 1946, Justice Vikramjit Sen said: "It
    will be anomalous that a hospital which is undeniably an 'industry' is held not to be an industrial establishment."

    In 2006, the above decision was overruled by a division bench of the Delhi High Court comprising Chief Justice Markendeya Katju and
    Justice Madan B Lokur. They held that a hospital was not a workshop or an establishment in which articles were produced, adapted or
    manufactured.

    “The main activity of a hospital is to cure diseases and ailments and not to do washing, cleaning, generating, cold storage etc... These are only incidental activities...,” the judges observed.

    The Bench said the Supreme Court’s interpretation of the word
    “industry” in the Industrial Disputes Act had no application to the interpretation of the words “industrial establishment” in the Standing
    Order Act.

    SUMMARY & PRESENT POSITION

    In view of the 2006 judgment of the Delhi High Court, the present position is that a hospital is not an industry.

    -- M C Gupta
    MD (Medicine), LL.M.
    Ex-Professor
    Practicing advocate
    6 January 2010

    ReplyDelete
  42. Please clarify the Statement that only Radiologists can conduct ultrasounds,

    >> There is nothing to clarify. Law is law. Ultrasound examination can be performed only by a properly trained person with proper qualifications. it is not like using a stethoscope which is the prerogative of ANY doctor.

    ***

    Re. imapunjab,Ferozepur,consumer forum which finds Govt. Rules U/S scan to be done only by Radiology experts.

    >>> The decision is correct and proper and is as per law. I would like to have a copy of the Ferozepur,consumer forum order if anyone can provide it.

    ***

    So that our smooth working for fighing Against Sex Selection may not be hampered.

    >>> In what way can the fight against Sex Selection may be hampered if only qualified persons are allowed to do ultrasound examination?

    M C Gupta

    ReplyDelete
  43. QUESTION— What are the eligibility requirements for performing ultrasonography under the PNDT Act?

    ANSWER—The requirements are laid down Rule 3 (3) (1) (b) of the Pre-Natal Diagnostic Techniques (Regulation And Prevention Of Misuse) Rules, 1996, as amended in 2003, which can be viewed at
    http://www.mohfw.nic.in/The%20PNDT%20(AMENDMENT%20RULES),%202003.htm
    The requirements are that the person should be --

    "(b) a Sonologist, Imaging Specialist, Radiologist or Registered Medical Practitioner having Post Graduate degree or diploma or six
    months training or one year experience in sonography or image scanning,"

    QUESTION—A Consumer Forum has reportedly held that the permissible qualifications for sonologist mentioned in the PNDT Act are meant only for the purposes and circumstances related to the Act and the concerned Pre Natal Diagnostic Techniques and that the licence granted under the PNDT Act for ultrasonography doesn't mean that the person so licenced is competent to perform ultrasonography in all other patients of diverse nature in a hospital. On this ground, the Forum has held a surgeon and an ultrasonologist guilty of negligence / deficiency of service as regards treatment of a patient allegedly suffering from carcinoma of cervix. Please comment.

    ANSWER—The Forum has taken the correct stand. Licence or permission given in one situation does not mean a general license or permission
    for all situations. For example, there are many remote, rural and tribal areas without a qualified anaesthetist, gynecologist or ENT
    surgeon. An ordinary MBBS doctor would be justified, if necessary, in administering anesthesia or performing a Caesarian section or
    tracheostomy in order to save life. A complaint for medical negligence against such a doctor is likely to fail. However, this does not mean
    that MBBS doctors in cities should go around performing such procedures when qualified persons, in whose hands the patients are
    more safe, are available.

    I think the Forum has applied the law correctly.

    -- M C Gupta
    MD (Medicine), LL.M.

    ReplyDelete
  44. QUESTION—Our hospital is a recognized panel hospital for treatment of patients who have ben issued mediclaim / health insurance policies issued by many insurance companies. However, these companies insist that the pathology
    tests of the patients should be performed by those having the degree of MD,Pathology. Is it not illegal on their part to not recognize diploma holders as pathologists? Can we initiate legal action against them?*

    ANSWER—The insurance companies are committing no illegality. No legal action lies against them. No hospital has a right that it must be recognized as a panel hospital by the insurance company. The insurance company has a right
    to use its own criteria for recognizing a hospital. If they seek certain minimum standards in any branch of medicine, including pathology, it is perfectly legal.

    -- M C Gupta
    MD (Medicine), LL.M.
    Ex-Professor
    Practicing advocate
    12 January 2010


    QUESTION--Can an MD (Pathology) do routine veterinary pathology tests without any complications?

    ANSWER—No. An MD (Pathology) is licensed by the medical council to practice medicine. He is not licensed to practice any other system such as homeopathy, Ayurveda or veterinary medicine, each of which is governed by respective professional councils. Practice of veterinary
    medicine is governed by Indian Veterinary Council Act, 1984. Nobody can practice veterinary medicine unless he is registered under this Act. Section 30 of the said Act reads as follows:

    “30. Right of persons who are enrolled on the Indian veterinary practitioners register.- No person, other than a registered veterinary
    practitioner, shall—
    (a) hold office as veterinary physician or surgeon or any other like office (by whatever name called) in Government or in any institution
    maintained by a local or other authority;
    (b) practise veterinary medicine in any State.”

    Carrying out veterinary pathology tests amounts to practice of veterinary medicine.

    -- M C Gupta
    MD (Medicine), LL.M.
    Ex-Professor
    Practicing advocate
    13 January 2010

    ReplyDelete
  45. QUESTION-- We had applied for CGHS empanelment of our hospital. Our application was rejected on the ground that we do not have an MD in
    Microbiology in our hospital. Our senior pathologist is a Prof of Pathology having a degree in “Pathology and Bacteriology”. I think
    this is wrong because many persons with such qualification are giving microbiology reports in India. As a matter of fact, there is extreme
    shortage of persons with an MD in Microbiology in our state and even the state medical colleges have a shortage of microbiologists. Is
    there any ruling / precedence on the basis of which we may represent our case to the authorities?

    ANSWER—

    1— The CGHS authorities are justified in having their own criteria for empanelment of hospitals. If they have rejected your application on
    the ground that you don’t have an MD in microbiology, it is likely that they would have empanelled other hospitals that have such staff.
    2— In case they have empanelled other hospitals not having an MD in microbiology, this would act as a precedent and, on the basis of this,
    you can certainly represent.

    QUESTION--What is legality validity of Membership and Fellowship certificates like FCCP, FACS etc., and foreign fellowship or
    membership like MRCP, FRCS , AB, etc.,

    ANSWER—A doctor should mention as suffix to the name only the following:

    --degrees or diplomas;
    -- Memberships [such as MRCP] or fellowships [such as FRCP] that have been conferred after an examination;
    -- Memberships [such as MNAMS] or fellowships [such as FRS]that have been conferred by a reputed scientific organization in recognition of
    high scientific talent.

    The Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002, state as follows:

    “1.4.2 Physicians shall display as suffix to their names only recognized medical degrees or such certificates/diplomas and
    memberships/honours which confer professional knowledge or recognizes any exemplary qualification/achievements”.

    -- M C Gupta
    MD (Medicine), LL.M.

    ReplyDelete
  46. QUESTION—Which medical council enjoys jurisdiction to investigate a complaint against a doctor?

    ANSWER—The jurisdiction lies with the medical council with which the doctor is primarily registered. This has the following implications:

    1—If a doctor is registered primarily with a state medical council A, such council A will have the jurisdiction.

    2— If a doctor is registered primarily with the MCI, the medical council of India will have the jurisdiction. [Sometimes the doctors
    are registered directly with the MCI. This was the case with doctors in Delhi before the Delhi Medical Council was established. This may
    also happen in case of some doctors who have a basic medical degree from foreign universities.]

    3— If a doctor is registered primarily with state medical councils A and B, both the councils A and B will have the jurisdiction. The
    patient will be free to lodge a complaint with any of them.

    4—It is in the interest of doctors not to get registered primarily with more than one medical council. By multiple registration, a doctor
    exposes himself to multiple jurisdictions. Some medical councils are too active against doctors, even unreasonably so. Others are too lax.
    A wise complainant will choose a council which is potentially more likely to find negligence.

    5-- It is in the interest of doctors not to get registered primarily both with a state council and the MCI. Some of my doctor clients .have
    done so. I advise them to get the primary MCI registration cancelled immediately. The reason is that if a state council decides against the
    doctor, he has a right of appeal to MCI. Such right is automatically lost if the primary investigation on a complaint is carried out and
    the judgment given by the MCI. This happened to a doctor client of mine who was registered both with Delhi Medical Council and the MCI.

    6—State medical councils insist that any doctor working in the state must get registered with them. Such insistence is illegal and lacks
    legal reasoning or force. As per the MCI Act, 1956, a doctor registered with any one state council gets his name automatically
    included in the Indian Medical Register and he is thereby entitled to practice medicine anywhere in India. The state medical councils insist on specific registration with them only to make money out of registration fees. Doctors should refuse to bow to such insistence.
    There is nothing in any law to enforce multiple registration or to punish a doctor for not getting multiple registration.

    7—Hospitals in states often lay down a condition that the applicant doctor must be registered with the state medical council concerned.
    An example is the government hospitals in Rajasthan. This is unjust and illegal. Doctors should fight against this practice by filing a
    writ in the High Court individually or collectively.

    8-- Hospitals in states often lay down a condition that the applicant doctor for joining DNB training course must be registered with the
    state medical council concerned. An example is the Ganga Ram Hospital, Delhi. This is unjust and illegal. Doctors should fight against this practice by filing a writ in the High Court individually or collectively.

    I have suggested above that doctors should fight against illegality perpetrated on them. It is my sad experience that they are too timid
    or afraid or unconcerned about this. Even the central IMA and its state branches do nothing in this regard for the sake of doctors, though they often waste large funds otherwise.Another example of injustice tolerated by doctors is bowing to the dictat of the state medical council (for example, Delhi medical council) that a doctor cannot be defendedin an inquiry through or by his advocate.

    -- M C Gupta
    MD (Medicine), LL.M.
    Ex-Professor
    Practicing advocate
    23 January 2010

    ReplyDelete
  47. QUESTION—Patients often demand the original medical records from the hospital and tend to get violent when refused. What is the remedy?

    ANSWER—Patients develop distrust because hospitals usually refuse to or are unwilling to provide even the copies of originals. Once
    distrust develops, problems and complications develop. I suggest the following:

    a— Hospitals should clearly display at prominent paces the following—

    “Regulation no. 1.3.2 of the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002:
    1.3.2. If any request is made for medical records either by the patients / authorised attendant or legal authorities involved, the
    same may be duly acknowledged and documents shall be issued within the period of 72 hours.”

    b—The above should be accompanied by the description of a simple and clear procedure and charges for implementation of the regulation.

    c—‘a’ above should be included in the consent form as follows: “I consent that the hospital records (medical case sheet, laboratory
    reports, xray reports, ECG and echocardiogram reports, hemodynamic study reports, ultrasouns, catscan, MRI reports, cytology and biopsy
    reports etc. are property of the hospital and that I am entitled to receive copies as per provisions of Regulation no. 1.3.2 of the Indian
    Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002. Hosever, on a written request being made specifying
    reasons, the hospital may loan to me for a specific period the originals whose copy is not possible”.

    -- M C Gupta
    MD (Medicine), LL.M.
    Ex-Professor
    Practicing advocate
    24 January 2010

    ReplyDelete
  48. QUESTION—I have dual primary registration with MCI and Delhi Medical Council. I want to cancel my MCI registration and retain DMC registration. However, the 5 year registration period with DMC
    expired 6 few years ago and I did not get re-registered, with the result that I have to pay Rs. 6000/- to DMC as late fee at the rate of
    Rs. 1000 per year. Will it be legally OK if I get my DMC registration cancelled, then get freshly registered with it (thus saving Rs.
    6000/-), and then get my MCI registration cancelled?

    ANSWER—Yes. You can do so. I do not see any legal impediment.

    ----------------------------
    QUESTION-- What is the harm in keeping both MCI and DMC registrations if a doctor is primarily registered with both?

    ANSWER—

    --1. The legal position is that as per the MCI Act, 1956, a doctor registered with any one state council gets his name automatically
    included in the Indian Medical Register and he is thereby entitled to practice medicine anywhere in India. If there is a complaint against a doctor, the state medical council with which a doctor is registered is competent to investigate the complaint and to punish the doctor, if found guilty. An appeal against the order of the state medical council can be made to the MCI within 60 days.

    2. Ordinarily, when somebody complains to the MCI against a doctor, the MCI forwards the complaint to the state medical council with which
    the doctor is registered and the concerned state council decides on the complaint. Appeal against the decision lies with the MCI.

    3. If the doctor is, in addition to the state medical council, is also primarily registered with the MCI, the latter can initiate directly
    initiate proceedings against the doctor. In such a situation, as soon as the doctor gets a notice from the MCI, he should tell it to refer
    the case to the state medical council concerned and should NOT send his reply of defence to the MCI.

    4. Doctors tend to be unnecessarily overawed by the MCI and send the reply of defence to the MCI and allow the proceedings to continue.
    When the MCI gives its decision, it may be against the doctor, and even unjustly so, but the doctor is left with nowhere to appeal. Thus
    the doctor loses the right to appeal, which is a very valuable right.

    5. The only way to avoid such problems is to get the unnecessary MCI primary registration cancelled. Such complications are real and have
    actually arisen in the past. Hence all doctors who are primarily registered both with the state council and the MCI should get the MCI
    registration cancelled in their own interest. It confers no advantage.

    -- M C Gupta
    MD (Medicine), LL.M.
    Ex-Professor
    Practicing advocate
    25 January 2010

    ReplyDelete
  49. QUESTION--Delhi Medical Council registers / licenses a doctor only for 5 years, subject to renewal every 5 years on payment of requisite
    fees. If a doctor delays in re-registration, he has to pay a penalty of Rs.1000 per year of delay. DMC does not allow fresh registration if
    a doctor wants to avoid payment of penalty and wants to be registered afresh. Is this stand of DMC correct?

    ANSWER--There can be three different situations:

    A-- A doctor is registered only with the Delhi Medical Council. After 5 years, the registration lapses. He does not get re-registered for 5
    years but continues medical practice. Then he applies for re-registration with DMC from the back date (date of lapse of registration). The DMC refuses demands Rs.5000/- @ Rs.1000 per year
    for re-registering him from the back date (the date on which the license lapsed).

    >>> The DMC is justified in this.

    **

    B--A doctor is registered only with the Delhi Medical Council. After 5 years, the registration lapses. He does not get re-registered for 5
    years but continues medical practice. Then he applies for re-registration with DMC from the date of application. The DMC refuses and offers to re-register him from the back date (date of lapse of registration) on payment of Rs. 5000/- @ Rs.1000 per year.

    >> It will be suicidal for the doctor not to agree to the DMC offer / demand. He can be severely punished under existing laws for practising medicine without license for 5 years.

    C-- A doctor is registered both with the Delhi Medical Council and the MCI. After 5 years, the registration with DMC lapses. He does not get
    re-registered with DMC for 5 years but continues to be registered with the MCI. Then he applies for fresh registration with DMC from the date
    of application. The DMC refuses, unless the doctor pays Rs. 1000/- per year as penalty for the last 5 years.

    >> The DMC is wrong in refusing. The doctor can sue DMC and is likely to win.

    -- M C Gupta
    MD (Medicine), LL.M.
    Ex-Professor
    Practicing advocate
    25 January 2010
    mcgupta44@gmail.

    ReplyDelete
  50. QUESTION—I am a faculty member in forensic medicine and am currently pursuing LL.B. course. I want to know;

    a-- whether a doctor can get registered with the Bar Council.

    b--If not, can he act as a medicolegal consultant?

    c--Can he practice in consumer forums?

    ANSWER—

    a--A doctor can get registered as an advocate with the bar council provided he stops his medical practice, as per the Supreme Court
    judgment in (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.
    b—If a doctor is not registered as an advocate (which means arguing in court on behalf of clients), he can still work as a medicolegal
    consultant, which may even include preparing legal grafts to be presented in the advocate by the client or his advocate. He can also appear as an expert witness. As regards practicing in consumer forums / commissions,
    c-- Regulation 16 of the Consumer Protection Regulations, 2005, states as follows:

    “(6) A Consumer Forum has to guard itself from touts and busybodies in the garb of power of attorney holders or authorised agents in the
    proceedings before it.

    (7) While a Consumer Forum may permit an authorised agent to appear before it, but authorised agent shall not be one who has used this as a profession: Provided that this sub-regulation shall not apply in case of advocates.

    (8) An authorised agent may be debarred from appearing before a Consumer Forum if he is found guilty of misconduct or any other malpractice at any time.” This can be viewed here:
    http://www.icrpc.org/icrpc.org.regulations2005.htm
    http://jwst.ap.nic.in/scdrc/html_work/news_1.html
    http://www.mpscdrc.nic.in/Regulations%20by%20national%20commission.pdf

    -- M C Gupta
    MD (Medicine), LL.M.
    Ex-Professor
    Practicing advocate
    25 January 2010
    mcgupta@gmail.com

    ReplyDelete
  51. *QUESTION—Sometimes patients or relatives ask for medical record that can’t be photocopied. How to bind them to return those documents? Will asking for a security be considered as illegal?

    ANSWER—*Asking for security would not be illegal.
    ++++++++

    FOR GENERAL INFORMATION OF DOCTORS

    1--The IMA has passed a resolution againsy the proposed BRMS course. It is given below.

    2—I endorse the resolution in general. I propose certain additions to it. These are also enclosed.
    ----------------------
    MY SUGGESTED ADDITIONS—

    1—The government should frame and enforce a policy rules that EVERY doctor in government service would be posted in rural areas for five
    years within first 20 years of service. Appropriate rules should be incorporated in service rules for this purpose. In any case, all
    government jobs are transferable and implementation of this policy cannot involve any procedural or legal problems.

    2—There should be a 20-year moratorium on opening any government or private medical colleges in urban areas. All such colleges should be established in rural areas only.

    3—There is a basic fundamental flaw in the government’s proposal for a BRMS course. It is wrong to surmise that rural medicine and rural
    surgery are different from generalmedicine and general surgery. No distinction can be made between rural and non-rural medicine and
    surgery. There is no rational basis for labeling the proposed course as a graduate degree course in ruralmedicine and surgery.

    4—If at all the government wants to start a short term medical course, it should be labeled DMDS [Diploma in medicine and Diploma in Durgery]
    to differentiate it clearly from a bachelor’s course. However, this, too, will be against the government’s earlier decision to abolish
    non-degree medical courses such as LMP,LSMF etc.

    5—The government can mobilise asizeable number of MBBSdoctors to rural areas by implementing a scheme on the following lines:

    a--Government should grant waiver of fees or high concession in fees to those who join MBBS course under a bond and surety that they would
    serve in a rural area for ten years after graduation. The government will thus have no problem in getting enough doctors for all its rural health facilities. If the government is not able to offer a job due to any reason, it should be permissible for these doctors, under the conditions of the bond, to get a job in a non-government health facility in a rural area or to set up practice in a rural area.

    b—In order to ensure compliance, the government should amend the Indian Medical Council Act, 1956, to incorporate a clause that such
    doctors who avail of free / highly concessional medical education in government medical colleges will, for a period of ten years, be given
    a temporary license to practice medicine, either in service or in their own private practice, in the defined rural, remote, hilly or tribal areas. Only at the expiry of this 10 year period will they be eligible for grant of permanent registration with the medical council.
    This will, in a simple deft stroke, solve the problem of lack of doctors in rural areas.

    c--For those who are not able to get a job in a rural area, schemes of alternate avenues for earning can be started, including financial and
    other support for those willing to set up their private practice in rural areas. Such support may be partly as free initial aid and partly
    in the form of soft loan from rural development bank. Likewise, doctors starting a hospital in rural areas should be given various financial and other incentives. More hospitals in rural areas will automatically mean more jobs for doctors there.

    d—In order to make the above scheme more interesting, other incentives can be given to doctors, such as facilitated admission to postgraduate courses at the end of 10 years; free quality education, including free
    boarding and lodging, to children of doctors serving in rural areas, etc.
    --
    (Ex)Prof. M C Gupta
    MD (Medicine), MPH, LL.M.,
    Advocate & Medico-legal Consultant

    ReplyDelete
  52. *QUESTION--** Are doctors from non-allopathic systems of medicine permitted to be employed and perform duties in general hospitals? If yes, then what kind of work can they do?** **

    ***

    *ANSWER—*There is no law to the effect that doctors from non-allopathic systems of medicine cannot be employed in a general hospital. The only legal requirement is that, as per the Supreme court judgment in Poonam Varma Vs
    Ashwini Patel case – 1996, a doctor qualified and licensed in one system of medicine cannot practice in another system of medicine in which he is not licensed to practice. This judgment does not prevent an Ayrvedic or homeopathic doctor from being employed in an allopathic hospital for rendering services such as a hospital administrator, nursing supervisor,
    clinical assistant etc., as long as he is not prescribing / treating patients directly.

    ---------------------------------
    Ref: Can it (Clinical Establishment Bill) help of shutting of Pathology
    labs run by technicians?

    ****

    Yes. It should,depending on what criteria are used by the government as regards competence to open pathology labs. the high Courts have already held that such labs. can't be run by technicians.

    M. C. Gupta

    ReplyDelete
  53. QUESTION—Is it legally permissible that a patient may simultaneously lodge medical negligence complaints with the following: consumer court; police / criminal court; medical council; human rights commission? If yes, why?

    ANSWER—It is legally permissible to launch proceedings at the same time in the first three instances. The reason is that the reliefs
    claimed are different in each complaint. The consumer complaint is meant to get compensation for negligent injury caused. It seeks
    monetary compensation for the loss suffered. The criminal complaint is meant to prevent / deter the negligent / incompetent person from
    causing similar negligent act towards others. It seeks his arrest / incarceration. The medical council complaint is meant to disallow
    incompetent or negligent doctors from practicing medicine. It seeks cancellation of medical license.

    The human rights commission is primarily concerned with human rights. If it entertains a complaint of medical negligence, it would not allow other civil proceedings, such as the consumer court case, to run concurrently.
    ------------------------------

    QUESTION— What should the hospital do if a patient refuses to accept the treatment offered in his best interest and insists upon having an
    alternate but inappropriate treatment of his choice, saying that ‘either I die or you throw me out if you won’t give me the treatment I
    want”?

    ANSWER— The legal and correct position is that a hospital or a doctor is not a provider of treatment as demanded by the patient. This flows
    from the judgment of the Supreme Court in IMA v. V.P. Shantha, SC, decided on 13.11.1995,where the court held that a doctor treats a
    patient under a “contract for service” and NOT under a “contract of service”. (It is interesting to note that the IMA had pleaded just the reverse in the court.). In view of this position, the hospital would be fully entitled to discharge the patient at his own request. Such a patient is likely to initiate legal proceedings against the hospital. In view of this, proper documentation must be carefully maintained.

    However, at a practical level, all efforts should be done to understand the viewpoint of the patient and to provide him necessary
    counseling along with his attendants. Proper record of such efforts should be maintained.

    -- M C Gupta
    MD (Medicine), LL.M.

    ReplyDelete
  54. QUESTION—MBBS doctors are facing many challenges in India. The profession is becoming timid under the shadows of general indifference, corruption, apathy and jealousy of administrators. What
    is the remedy?

    ANSWER—This is a general question and the answer can be very long. I will try to be short and succinct;

    1—I am not surprised by general indifference, corruption, apathy on the part of administrators. I am not sure if they are jealous of doctors. The indifference, corruption and apathy are general and not specific towards doctors.

    2—Anybody who becomes timid will be suppressed and will suffer all the more. Nobody has sympathy for the timid. Mahatma Gandhi was frail but not timid. He had courage. That is why the British government bowed to him.

    3—Courage comes from strength. Strength can be moral or legal. Mahatma Gandhi had both. Doctors, in general, have none. One may not expect an ordinary doctor to have the moral courage of Mahatma Gandhi. Yet, one can expect a doctor to be willing to fiht injustice done to him or the profession. In my experience, most doctors are most unwilling to legally protest, either personally or through a lawyer, any act of
    injustice against them or the profession, even though most doctors can afford to engage a lawyer.

    4—There are many situations when injustice is done to the profession in general and no individual doctor may be keen to fight for it at
    individual level. It is for the IMA to fight such injustice in a court of law. The IMA wastes funds in many ways but often chooses not to
    legally protest against such injustice. Examples of injustice unprotested legally are as follows:

    a—No case has been filed against Delhi Medical Council and other councils for not allowing advocates to represent doctors in inquiries
    held by the council against doctors, though this is in violation of law.

    b— No case has been filed against Delhi Medical Council and other councils for claiming compensation for loss of reputation consequent
    upon his being held negligent and for loss of income during the period of wrong and illegal suspension of his medical license.

    c-- No case has been filed against government and non-government establishments for refusing job / post-graduate admission to a doctor
    on the ground that he is not registered with the state medical council, even though his name may be on Indian medical Register.

    d-- No case has been filed against government and non-government hospitals for violating the residency guidelines laid down by the
    Supreme Court.

    e-- No case has been filed against government by IMA for removing injustice done to doctors that forces them to go on recurrent strikes.

    The above list can be easily multiplied many-fold.

    SUMMARY—We should stop blaming others for our ills. I may as well say—“Doctor, heal thyself”.

    -- M C Gupta
    MD (Medicine), LL.M.
    Ex-Professor
    Practicing advocate

    ReplyDelete
  55. QUESTION--A clinical psychologist, who is not MBBS, ordered, as per prescription slip, tests like “ M R I Head, urine R/E ,C/S,Hemoglobin, SGOT ,SGPT, LFT” etc. for a person with mild mental retardation who, in fact, had no disease or indication for such tests. Is he legally competent to do so? If not, what action can be taken against him?

    ANSWER—

    A--If he has no medical degree at all, such as BAMS, BUMS, BHMS etc., and is not registered with any medical council, he is clearly posing
    as a medical practitioner, which is illegal and the following actions can be taken—

    a—Criminal complaint under Indian Penal Code;

    b—Consumer complaint if he has charged fees for services (for giving medical care services though not qualified to do so)

    c—Complaint to state Medical Council under a specific anti-quackery provision if the concerned state Medical Council Act has such
    provision. For example, as per section 10 (i) of Delhi medical Council Act, 1997, the Council has “to ensure that no unqualified person
    practices modern Scientific System of Medicine.” Section 27 reads as follows: “27. False assumption of Medical Practitioner or Practitioner under this Act to be an offence--Any person who falsely assumes that he is a medical practitioner or practitioner as defined in clause (7) of section 2 and practices the modern scientific system of medicine,shall be punishable with rigorous imprisonment which may extend up to three years or with fine which may extend up to Rs.20,000 or with both.”
    d—If the person concerned is working in association with a registered doctor, (which is most likely, since all the tests mentioned can be
    conducted only by a specialist), then the person can be indirectly proceeded against by filing a medical council complaint against the radiologist / pathologist concerned for unethical conduct as per the
    provisions of The Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002, which provide that--
    “8. PUNISHMENT AND DISCIPLINARY ACTION
    8.1 It must be clearly understood that the instances of offences and of Professional misconduct which are given above do not constitute and are not intended to constitute a complete list of the infamous acts which calls for disciplinary action, and that by issuing this notice the Medical Council of India and or State Medical Councils are in no way precluded from considering and dealing with any other form of professional misconduct on the part of a registered practitioner. Circumstances may and do arise from time to time in relation to which
    there may occur questions of professional misconduct which do not come within any of these categories. Every care should be taken that the
    code is not violated in letter or spirit. In such instances as in all others, the Medical Council of India and/or State Medical Councils
    have to consider and decide upon the facts brought before the Medical Council of India and/or State Medical Councils.”

    B--If he has a qualification such as BAMS, BUMS, BHMS etc., he may still be proceeded against,, though with relatively lesser force, for
    falsely posing / practicing modern medicine / allopathy.

    C—If he is employed in an organization, the following complaints can be made:

    a-- to the organization, against the person, asking them to take action against him as per service rules.

    b—to the consumer forum, against the organization, for deficiency /negligence in service;

    c—to the state health directorate, against the organization / hospital, for cancellation of the registration of the nursing home / hospital.

    D—If he is a member of the Clinical Psychologists Association, a complaint can be filed with the association to take action as per
    rules.

    There may be other legal avenues, but the above should be quite sufficient to get the desired result.

    -- M C Gupta
    MD (Medicine), LL.M.
    Ex-Professor
    Practicing advocate
    8 February 2010

    ReplyDelete
  56. Does unnecessary repetition of investigations amount to malpractice?

    QUESTION—It is commonly seen that when a patient is transferred or
    referred to a hospital by another hospital, a large number of
    investigations, already carried out by qualified and authentic persons
    are repeated on the ground that “we don't rely on outside reports".
    This imposes unnecessary economic burden upon the patients. Is such a
    practice legally/ ethically valid? Does it amount to medical
    malpractice?

    ANSWER—If the doctors at the new hospital genuinely believe that
    previous reports might be unreliable or need to be repeated for proper
    diagnosis or re-assessment of the condition of the patient, there is
    nothing wrong in repeating them. On the other hand, if the new
    hospital repeats all investigations in a mechanical manner without
    application of mind merely to make more money and if it can be
    satisfactorily / definitively demonstrated by medical literature or
    expert opinion that wrong and unnecessary advice was given to the
    patient and he was made to suffer thereby unnecessary delay, physical
    pain / discomfort, mental agony and expenses, such a practice would be
    definitely illegal and the hospital would be liable to be held guilty
    of medical malpractice and deficiency in service.

    In such situations, courts cannot take their own judicial decisions.
    They have necessarily to rely upon expert evidence in the nature of
    literature or opinion. Doctors often hesitate to give opinion against
    other doctors or hospitals. Socially minded doctors should come
    forward to give expert opinion even if it is likely to go against a
    professional colleague.

    -- M C Gupta
    MD (Medicine), LL.M.
    Ex-Professor
    Practicing advocate
    mcgupta44@gmail.com

    18 February 2010

    ReplyDelete
  57. How to deal with a serious indoor patient who is not paying hospital bills?

    QUESTION –Our hospital has patient who is immobile and is in a vegetative state and is not fit to be discharged. The relatives are
    refusing to pay the balance to the hospital till the patient recovers.
    What legal recourse does the hospital have? Can the treatment be stopped?

    ANSWER—The treatment cannot be stopped. This will be against law and
    would make to doctors liable in law.

    I suggest the following legal recourse:

    a—Continue the treatment at a level that the hospital is comfortable
    with, without ignoring basic medical principles. Keep proper medical
    record because this is a case that may lead to litigation.

    b—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.

    c—Request the local government hospital to admit the patient.

    d—If the above does not help, file a writ petition in the high court
    praying for appropriate relief.

    -- M C Gupta
    MD (Medicine), LL.M.
    Ex-Professor
    Practicing advocate
    mcgupta44@gmail.com
    19 February 2010

    ReplyDelete
  58. Refusal to pay the hospital bill—what to do?

    QUESTION—Sometimes a patient refuses to pay the bill, especially after
    he has been admitted in an emergency to save his life, on the ground
    of inability to pay or of alleged deficiency in service. What is the
    legal recourse?

    ANSWER—

    a—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.

    b—A patient should not be refused emergency treatment at a private
    hospital and life saving treatment should not be withheld. This is
    liable to be held against the doctor / hospital. However, 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.

    c—In the above situation, proper documentation should be maintained to
    the effect that since the hospital is a private hospital without
    government aid and no consultant is willing to undertake to treat the
    patient on a free or charitable basis, 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 on humane and compassionate grounds
    without having any intention to enter into a contract for providing
    medical services. Such documentation will tend to fortify the hospital
    against any future litigation for medical negligence or deficiency in
    service.

    d—If the patient alleges deficiency in service and, therefore, refuses
    to pay the bill, the hospital must immediately send to him / his
    relatives a legal notice demanding such payment. Legally, if
    necessary, this may be done even while the patient in the hospital.

    e—The legal notice demanding payment of bill should be sent
    irrespective of the fact that the patient has filed a complaint in the
    consumer court alleging deficiency in service. Consumer courts are not
    competent to order such payment.

    f—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.

    -- M C Gupta
    MD (Medicine), LL.M.
    Ex-Professor
    Practicing advocate
    mcgupta44@gmail.com
    20 February 2010

    ReplyDelete
  59. Recovery of unpaid bill in respect of a patient who died.

    QUESTION—A patient in the ICU of our hospital died but the relatives
    did not want to pay the outstanding bill of Rs. 1.5 lakh. What can be done legally?

    ANSWER—The hospital should send a legal notice for payment. 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.
    ======================================

    Should the hospital give the original medical case sheet to others?

    QUESTION— Is there any government resolution that original documents in respect of a medico-legal case in a hospital should be maintained in the hospital itself and not given to anybody except the court?

    ANSWER—No. However, I don’t know the background of this question. I don’t know how the government comes into picture. All medical
    documents / case sheets in a private hospital are property of the hospital. The government has nothing to do with it. Nobody can demand
    the possession of hospital property except in accordance with law. That being so, courts, police and the patient himself would be
    entitled, amomg others, to ask for the hospital case sheet. Even here, a copy of the case sheet, duly authenticated by the hospital, should
    usually suffice. There is no question of the possession of the original to be transferred to anybody else. In exceptional situations,
    police / courts may require the production of the originals.

    -- M C Gupta
    MD (Medicine), LL.M.
    Ex-Professor
    Practicing advocate
    mcgupta44@gmail.com
    21 February 2010

    ReplyDelete
  60. Giving hospital records to the patient in medico-legal cases.

    QUESTION- Can we hand over original document like investigation reports, discharge summary, ECG, CT scan films etc. to the patient at
    the time of discharge in medico legal cases?

    ANSWER—No. We should not. A medico-legal case at the time of discharge would mean a case where the police has already registered a case or
    where a notice has been issued to the hospital or a complaint or suit has been filed against it. The hospital will be justified in such
    situations to withhold parting with the possession of records during the pendency of litigation.

    Additionally, the following information about hospital records may help regarding
    whose property are patient records:

    Patient records can be of two types: personal records and hospital generated records.

    Personal records are those that pertain specifically in an unalterable
    form to the patient’s body, such as x-rays, CAT-scan and MRI reports, ECG, EEG etc.

    Hospital generated records are those pertaining to record of treatment, investigations (such as blood, urine reports etc.) and consultation etc., such as the case sheet written / complied by the doctors, as also the nurses record.

    In order to arrive at a legally valid answer, let us look at this question on the basis of legal principles.

    ONE, we are dealing here with moveable property.
    TWO, he is the owner who makes something on invests in something using his own resources.
    THREE, the owner usually possesses the property and has control over it.
    FOUR, owner may part with the possession, with or without his consent, with the result that while he owns it, he does not possess it.
    FIVE, property unclaimed by the owner for a specified time cannot be legally claimed after such time.

    Without elaborating further about legal details, it would be safe to answer the question, in view of the above, as follows:

    A—The case sheet written / compiled by the hospital is property of the hospital. However, the hospital is bound by law to provide a photocopy to the patient on demand within 72 hours after levying reasonable
    charges, if any.

    B—Xrays etc. are the property of the hospital if the hospital has paid for them (such as government or charitable hospitals).

    C—Even when X-ray, ECG, EEG etc. are paid by the patient, it may be desirable in the interest of the society and advancement of science
    that such records should be available with the hospital so that necessary research in the interest of science and society may be
    carried out at some future date. However, the patient should certainly be given these records if he wants to consult another expert or for
    any other reason. The same applies to pathology slides etc. Whenever such records are given, they should be given under acknowledgement. It
    would be a good idea to get in writing, at the time of giving, something like this: “I agree to return it within ……….weeks.”

    -- M C Gupta
    MD (Medicine), LL.M.
    Ex-Professor
    Practicing advocate
    mcgupta44@gmail.com
    22 February 2010

    ReplyDelete
  61. Replying to a notice sent by the patient.

    QUESTION-- Is there any standard first reply which can be given/ sent to the patient in case one receives a letter from patient accusing the
    doctor of negligence and threatening to take the matter to the court?

    ANSWER—

    a--It would be not advisable to send a general reply as per a uniform format. Such reply is bound to be deficient as per proper standards.

    b—There is nothing like a first reply. When the doctor receives a notice, he should reply to it with full seriousness and not merely
    casually as a first reply, to be fortified later. The reply sent in the first instance can be later held against him in the court.

    c--The purpose of sending a reply to the notice is twofold. ONE, to send such a reply that the sender gets convinced that there was no
    negligence or there would be little chance of his winning and hence he should better not initiate legal proceedings. TWO, to send such a
    reply as would in no way potentially dilute the pleadings in the actual detailed reply to the complaint / suit ultimately filed in the
    court by the sender. A routine reply sent as per a general format is unlikely to achieve any of these two purposes.

    d—It would be better to take the initial notice seriously and to engage a lawyer to draft a reply than the reply being drafted by the
    doctor himself. This is because the reply sent will form part of the complaint / suit filed by the patient in the court. Doctors are likely
    not to appreciate the legal nuances of what they write.

    -- M C Gupta
    MD (Medicine), LL.M.
    Ex-Professor
    Practicing advocate
    mcgupta44@gmail.com
    22 February 2010

    ReplyDelete
  62. Giving to the patient the original reports of investigations paid by him when it is a medico-legal case.

    QUESTION—Should original records in the nature of x-ray, cat-scan, MRI, ECHO, ECG, TMT, etc., for which the patient has paid, be given to
    the patient if he demands the same while litigation is going on?

    ANSWER—No. They should not be given unless the court orders or unless the hospital, due to whatever reasons, thinks it would be in the
    interest of the patient to have them. The Code of Medical Ethics Regulations, 2002, talk of only giving the copy of medical records,
    not the originals. In general, the hospital should use its own discretion.

    -- M C Gupta
    MD (Medicine), LL.M.
    Ex-Professor
    Practicing advocate
    mcgupta44@gmail.com

    24 February 2010

    ReplyDelete
  63. Discharging a patient when his condition is critical.

    QUESTION—Is it legally permissible to discharge a patient on request even when the treating doctors are of the opinion that discharge from
    the hospital is not in the interest of the patient and is likely to result in further deterioration of the patient’s condition?

    ANSWER—It is permissible. In fact, it is binding on the hospital. No hospital is legally authorized to keep a patient in the hospital even
    for a minute against his will. No doctor is authorized to administer any treatment, including life- saving treatment, to any patient
    against his will. Forcible hospitalization will, in law, be deemed as illegal confinement and forcible treatment will be deemed as a willful
    act causing injury to the body of the patient.
    =============================================

    Posing as DNB without passing both parts of the DNB examination.

    QUESTION-- What is the legal standing of a person who has not completed his DNB part 2 examination but writes his qualification as
    DNB and handles patients?

    ANSWER—He has no legal standing. He is committing a fraud. He is misrepresenting himself as a specialist though he is not. He would be liable in civil as well as criminal law. Complaints can be filed at the following levels—

    a—To medical council by another doctor or a patient;
    b—To consumer court by a consumer;
    c—To his employer;
    d—To the state health department against the hospital, if it is a private hospital granted permission by the state under the nursing
    home act.
    e—To police / magistrate.

    All the above can proceed simultaneously.

    -- M C Gupta
    MD (Medicine), LL.M.
    Ex-Professor
    Practicing advocate
    mcgupta44@gmail.com
    24 February 2010

    ReplyDelete
  64. QUESTION—What are the provisions of the regulations no. 6.8 & 6.8.1
    notified vide MCI-211(1)/2009(Ethics)/55667 dated 10th December 2009,
    regarding the relations between doctors and the pharmaceutical companies?
    Will the companies not find novel ways and ideas to entertain doctors?*

    * *

    *ANSWER—*The above notification adds a new regulation to the pre-existing The
    Indian Medical Council (Professional conduct, Etiquette and Ethics)
    Regulations, 2002. This new regulation is partly reproduced below in as much
    as it concerns your query:

    “6.8 Code of conduct for doctors and professional association of doctors in
    their relationship with pharmaceutical and allied health sector industry.

    6.8.1 In dealing with Pharmaceutical and allied health sector industry, a
    medical practitioner shall follow and adhere to the stipulations given
    below:-

    a) Gifts: A medical practitioner shall not receive any gift from any
    pharmaceutical or allied health care industry and their sales people or
    representatives.

    b) Travel facilities: A medical practitioner shall not accept any travel
    facility inside the country or outside, including rail, air, ship, cruise
    tickets, paid vacations etc. from any pharmaceutical or allied healthcare
    industry or their representatives for self and family members for vacation
    or for attending conferences, seminars, workshops, CME programme etc as a
    delegate.

    c) Hospitality: A medical practitioner shall not accept individually any
    hospitality like hotel accommodation for self and family members under any
    pretext.

    d) Cash or monetary grants: A medical practitioner shall not receive any
    cash or monetary grants from any pharmaceutical and allied healthcare
    industry for individual purpose in individual capacity under any pretext.
    Funding for medical research, study etc. can only be received through
    approved institutions by modalities laid down by law / rules / guidelines
    adopted by such approved institutions, in a transparent manner. It shall
    always be fully disclosed.”

    In simple words, what the above states is that a medical practitioner should
    not accept any gifts, travel facilities, hospitality, cash or monetary
    grant, etc. for himself or his family. However, it apparently permits some
    of these being channelled through an association or institution. This latter
    apparent possibility provides a loophole for possibly circumventing the
    intent of the regulation and may enable the companies to find novel ways and
    ideas to entertain doctors. Nobody can prevent a person from doing something
    illegal or immoral if he is bent upon doing it.

    The importance of the regulation lies in the fact that now the following
    would become possible:

    a—Anybody can complain to the medical council that a doctor is violating
    regulation 6.8.1 and, acting upon the complaint, the medical council can
    punish the doctor asa per law.

    b—A consumer can complain to the consumer court that the service provided by
    a doctor was deficient or negligent because he prescribed a medicine or
    appliance or test etc. wrongly or unnecessarily in return for favours
    granted by the pharmaceutical company, even though acceptance of such
    favours was illegal.
    -- M C Gupta
    MD (Medicine), LL.M.

    ReplyDelete
  65. QUESTION—I am a pathologist. A few days ago, I found that 5 wrong blood
    group reports were given by my lab to OPD patients because of faulty anti D
    serum supplied by the manufacturer / supplier. I have already mailed a
    complaint twice to the seller / supplier / manufacturer regarding the wrong
    results given by their faulted kit but I have got no response. I think they
    are least bothered about it. Till date I have not received a complaint from
    the patients. What medico legal advice would you like to give me in case I
    get a summon?

    *

    *ANSWER—*You should not wait for a summon from the court after a complaint
    has been filed against you. Then you will not be able to defend yourself
    properly. I suggest the following:

    A—Immediately write, under acknowledgement, to the patients and their
    referring doctor, informing them that your report was wrong, detailing the
    circumstances, and offering to repeat the test free or to refund the fees
    charged as per their option.

    B—You were the buyer of goods that turned out to be defective. You sent a
    complaint to the supplier but he kept quiet. Now you should send a proper
    legally drafted notice asking FIRSTLY, that he should compensate you
    monetarily; SECONDLY, that he should, within 10 days, bring to the notice of
    all purchasers, in writing, that the serum supplied was faulty and should
    not be used and would be immediately replaced by a serum of good quality
    free of cost. If he does not respond satisfactorily, file a complaint with
    the consumer court. Additional legal action may be taken in accordance with
    the Drugs and Cosmetics Act, 1940, and the Companies Act etc., followed by a
    PIL, if needed.

    -- M C Gupta

    MD (Medicine), LL.M

    ReplyDelete
  66. Can a group of doctors see free movies courtesy pharma companies?*

    *QUESTION—Suppose a group of doctors goes to a cinema hall availing movie
    tickets / free passes provided / arranged by a pharmaceutical company. Will
    they be liable under regulation 6.8.1of the Indian Medical Council
    (Professional conduct, Etiquette and Ethics) Regulations, 2002?*

    * *

    *ANSWER—*The said regulation forbids a registered medical practitioner from
    accepting any gifts, travel facilities, hospitality, cash or monetary grant,
    etc. for himself or his family from a pharmaceutical company. The acceptance
    of a free movie ticket would be covered under the ban on receiving gifts.
    ============================================
    QUESTION-- In view of NABL accreditation of our hospital- based lab, we
    have to know whether an attached toilet is desirable/not acceptable for
    Microbiology Laboratory and Clinical Pathology Laboratory. We have got
    attached toilet-baths at both the spaces, which are used by lab staffs.
    (These are not required for the patients as toilet for the patients is
    separate with the specimen collection room.)Somebody has said that we have
    to close both these toilet-baths for NABL accreditation. In the
    NABL document, nothing is mentioned about the above. Can anybody experienced
    in NABL accredited lab give some idea?*

    * *

    *ANSWER*—I referred this question to Dr. S K Dutt, who is a qualified
    assessor and has assessed many hospitals and laboratories. I have received
    the following reply from him:

    “Toilets attached to the micro-bio & clinical path lab has nothing to do
    with NABL accreditation. No audit will happen in these & it is a staff
    facility that should not be mentioned in the NABL document. It is stand
    alone facility & has nothing to do with NABL accreditation.”

    -- M C Gupta

    ReplyDelete
  67. *QUESTION—Is it not undesirable that the **National Council / governing body
    to be constituted in terms of the proposed Clinical Establishments
    (Registration and Regulation) Bill, 2010, should be composed of persons from
    Unani, Sidha, Nursing and Paramedical streams, there being, out of the 18
    member, only two from amongst the medical graduates (one from the Medical
    council and the other from IMA)?***

    * *

    *ANSWER—I *do not agree. It is wrong to state that only two of eighteen
    medical graduates. Those having BHMS, BUMS, BAMS degrees are also medical
    graduates. This bill is aimed at controlling clinical / paraclinical
    practice and thereby eradicating quackery,(which means practicing a medical
    / paramedical discipline without being qualified in that discipline). Since
    the bill is not confined to practice of modern / allopathic medicine, it is
    essential that it should have on its board representatives from all systems
    of medicine. It is high time that MBBS doctors should stop regarding
    themselves as the sole representative of all health professionals. ISM and
    paramedical professionals cannot be forgotten / made subservient.

    -- M C Gupta

    ReplyDelete
  68. *I did not treat the patient but have been accused of negligence. What to
    do?*

    * *

    *QUESTION—I am a laparoscopic surgeon working as a full time consultant in a
    corporate hospital. Cholecystectomy was being performed on a patient by
    another surgeon, who found adhesions and called me to assist him. By the
    time I finished my own case and reached the OT and washed up to assist him,
    he was about to close and I came back without assisting. My name does not
    appear in the operation notes. Thereafter the patient died. An FIR under IPS
    section 304A has been lodged against the hospital and doctors, including
    myself. I have not treated the patient at **pre-operative, operative or
    post-operative stages. I want to defend myself by saying that I never
    treated the patient, hence I am not liable. The legal cell of the hospital
    is asking me not to take this stand. What should I do?***

    * *

    * *

    *ANSWER--* It is not unusual that when the hospital and the consultant are
    co-accused, the hospital tries to safeguard its own interest as against the
    consultant's. You are not bound by the advice of the hospital legal cell. In
    the circumstances, it appears that the hospital advocate may not act in your
    best interest. It would be better for you to engage your own advocate and
    take a clear stand that you did not treat and have been wrongly implicated
    and hence you should be discharged from the case at the initial stage
    itself.

    Please note that this question and answer are merely based upon the e-mail
    sent by your wife even without even revealing your name or other details and
    is not based upon actual perusal of documents. The reply is being sent as a
    free service in the interest of spreading legal awareness amongst the
    medical profession. It does not constitute service.
    =============================================

    A SHORT RURAL MEDICAL COURSE IN INDIA?—{item:1626094}

    [A critique of the Indian government's decision to start a short term rural
    medical course.]

    http://www.writing.com/main/view_item/item_id/1626094-A-SHORT-RURAL-MEDICAL-COURSE-IN-INDIA

    --
    (Ex)Prof. M C Gupta
    MD (Medicine), MPH, LL.M.,



    -- M C Gupta

    MD (Medicine), LL.M.

    ReplyDelete
  69. *I gave wrong blood group report. What defence do I have?*

    * *

    *QUESTION— **I examined, in a camp situation, blood groups of about 1000
    students in a school at 50% charges, using the slide method. Blood group for
    one student was given as A, Rh positive while the actual group was A
    negative. Now I have received a summon from the consumer court. What defence
    do I have?***

    *ANSWER—*You can take the defence that:

    ONE—There is no adverse expert opinion against you, in the absence of which
    the court can’t issue notice to you (assuming that there is, in fact, no
    such opinion.)

    TWO --The wrong reporting occurred in 1 out of 1000 cases because of
    inherent fallacies in the method used as regards false positives, supporting
    your answer with literature and expert opinion. (It is known in medical
    literature that the slide method for Rh typing is only done as a screening
    test and it is not a final test.)

    THREE—No damage has been caused to the person concerned. There cannot be any
    compensation in the absence of damage.

    You cannot take the defence that the testing was done on a large number of
    students in a short time at half charges. This approach is unlikely to help
    you.

    LESSONS:

    1—The report given should clearly state the test method used and the
    limitations of the method used as regards false positives and false
    negatives.

    2—When critical positive reports like Rh and HIV are given, the pathologist
    should carry out confirmatory tests before giving the positive report and
    should state so in the report.

    (NOTE--A lot depends upon how the written reply is given and how the case is
    argued. I have been able, so far, to successfully defend doctors as follows:

    Two cases of wrong blood group reports.

    Three cases of allegedly wrong histopathology reports.

    One case of rubella positive report in a pregnant woman while two other
    laboratories had given negative reports.

    My experience has been that quite often, when the judgment goes against
    doctors, they tend to blame the court while, in fact, they themselves or
    their advocates were not able to plead properly.)

    -- M C Gupta
    MD (Medicine), LL.M.
    Ex-Professor
    Practicing advocate
    mcgupta44@gmail.com

    ReplyDelete
  70. *QUESTION--Is it legally permissible to keep male and female patients
    together in the general ward of a hospital?***

    * *

    *ANSWER—*I know of no law which prohibits keeping male and female patients
    together in the general ward of a hospital. It all depends upon the comfort
    level of those involved. There may be a small single doctor general hospital
    in a room with six beds in a remote place keeping costs to the minimum and
    treating patients at very modest rates or on charitable basis. If there are
    both male and female patients there, and they are comfortable with that, law
    need not and does not intrude upon the arrangement. On the other hand, there
    may be a 60 bedded general ward in a town. It will be rare to find a
    situation where this ward is not split into two wings, one for males and
    another for females.

    So, it is all a matter of practicability and feasibility.

    ==============================================

    *QUESTION— The workload of DCP holders is same as that of MD degree holders,
    but the status accorded to them is pathetic, to say the least. Sometimes
    they are even deemed as inferior to MSc / PhD degree holders who have no
    knowledge of the subject. Why doesn't the MCI stop giving all these useless
    diploma seats? At least, why does MCI not provide counselling during diploma
    seat allotment about the drawbacks of taking such useless seats?*

    * *

    *ANSWER—*What you are expecting the MCI to do is beyond its purview. The
    preamble of the MCI Act reads:”An act to provide for the reconstitution of
    the medical council of India and the maintenance of a medical register for
    India and for matters connected therewith.” It would be clear that the MCI
    has nothing to do with counseling and allocation of seats.

    Status is accorded by professional designation and seniority. These are, in
    turn determined by professional qualifications. Work load for all employees
    in an organisation is basically the same, in the sense that all work for
    roughly the same number of hours per day for the same number of days per
    week. What differs is the quality of work at different levels commensurate
    with their professional qualifications, designation and seniority.

    The grievances that you may have are not personal ones but apparently common
    to all DCP pathologists. The proper forum to deliberate and take necessary
    action would be the association of pathologists (as also the association of
    DCP pathologists, if there is any association of that nature.)

    -- M C Gupta
    MD (Medicine), LL.M.

    ReplyDelete
  71. Given below is the latest info about Obama's Health reform Bill. I am very
    happy about it.

    I would like to have answers to the following questions from those who might
    like to answer:

    1. Why was there so huge opposition to a bill that plans to extend health
    coverage to poor people who can't pay? [My understanding is that the
    opposition was from the lobbies who preferred the status quo which
    benefitted them. If costs for medical, pharma, hospital and diagnostic
    services and goods are high, it benefits those providing such goods and
    services. I understand that a very large percentage of doctors in USA, up to
    90%, sided with the Republicans in their opposition to the Bill. It is
    pitiable that doctors should side with high treatment costs and still expect
    to be viewed as friends of the public and patients. Reminds me of a surgeon
    in Mumbai who once wrote that there was nothing wrong in prescribing for
    anemia a fancy iron preparation costing Rupees four, or 10 cents, per dose
    rather than a simple ferrous sulphate tablet costing one twentieth of this
    amount. He even doubted as to whether I retained even the knowledge of basic
    medicine after my having become a lawyer.].

    2. Is not there a system in USA like the whip in the Indian legislatures?
    [This refers to the last sentence of the report given below.]

    M C Gupta

    ***************************

    OUTSOURCING OF AMERICAN MEDICAL EDUCATION TO INDIA: a proposal*—Entry
    691018 in {item:1508363}, “Dr. M. C. Gupta's Journal“
    [A proposal that would be beneficial for all concerned.]
    http://www.writing.com/main/books/entry_id/691018

    ReplyDelete
  72. *QUESTION—How should proper consent be obtained for performing an
    intervention procedure that may result in complications?

    *

    *ANSWER*—The guidelines are as follows:

    1—No procedure, even a life- saving one, should be performed if refused by
    the patient.

    2—When a patient cannot give valid consent (such as: a child; a person of
    unsound mind; a person not in his senses) and is not accompanied by guardian
    / next of kin and a procedure needs to be performed in the interest of the
    patient, a committee of three respectable persons should give consent on
    behalf of the patient.

    3—The person giving consent should clearly state that it has been explained
    to him in the language he understands that:

    a—That the procedure carries certain risks (namely……..)

    b--That the chance of developing these risks may be …….%

    c—That an alternate procedure is / is not available and the risk of the
    alternate procedure is…….%.

    d—That if the procedure is not performed, the risk to the patient would
    be…………….

    e—That the person who would carry out the procedure is competent to do so.

    f—That the procedure would be carried out under……………..type of anesthesia and
    the consent for the same is also given herewith.

    If the above is printed on the consent form, even then the consenter should
    write a few sentences in his own handwriting to the above effect. The
    consent should be countersigned by two witnesses.

    -- M C Gupta

    MD (Medicine), LL.M.

    ReplyDelete
  73. QUESTION—You have been to the USA. While there, did you get the opportunity
    to visit American hospitals? What were you impressions, say, in comparison
    to AIIMS?

    ANSWER*--When I was in the USA last time, I visited the office of a friend
    of mine having his specialist practice for 35 years. I also visited the
    practice of a physiotherapist. In addition, I listened to first- hand
    accounts of medical practice details from those providing medical services
    (doctors themselves having 30-40 years practice in the USA). I also had
    occasion to listen to the experiences of people who had been recipients of
    medical services. I also had occasion to see a bit of TV programmes and
    advertisements related to hospitals. During an earlier visit to the USA, I
    had been treated in a hospital there myself.

    My impressions are as follows (Note: These are just that—impressions. My
    statements below are not based on in depth knowledge and study. I hope to
    learn from the comments of readers, if any.)—

    1--Medical care in the USA is far costlier.
    2--It is quicker. Hospitals are much less crowded.
    3--The rich have no problem anywhere--India or the USA.
    4--The poor can have free treatment in India. If the treatment is being
    provided in places like AIIMS, (where many patients are poor and the
    majority get free treatment), the quality is excellent. In the USA, free
    treatment is a dream. A recent report reads:

    " June 5, 2009

    “Health care related bankruptcy is on the rise, study says”:

    Americans are increasingly at risk of financial ruin due to illness and
    medical expenses, according to a new study released yesterday by the
    American Journal of Medicine. The researchers found that illness or medical
    bills contributed to nearly two thirds, or 62 percent, of all bankruptcies
    in 2007—before the major impact of the housing collapse and current economic
    downturn. That’s a 50 percent increase over a similar survey in 2001 by the
    same researchers."

    http://blogs.consumerreports.org/health/2009/06/health-care-bankruptcy-on-rise-medical-debt-medical-bills-how-to-avoid-bankruptcy.html

    5--The public in the USA are in the vice-like grip of four giants: Medical
    industry; Pharma Industry; Diagnostics industry; and, Insurance industry.
    All the four giants are allowed to feed themselves by the
    Capitalist-Consumerist politico-economical system that governs thought and
    practice in the USA, more so in the case of the Republicans, which almost
    allows poverty to be viewed as a sin and richness as a virtue. In such a
    system, social welfare is viewed as communism, the most abominable bugbear
    in the eyes of the USA. The outcome of such a scenario is that the four
    giants feed on the blood of the victim and offer a part of the blood sucked,
    as an offering, to the one who so allows.

    6—The mind-set of the American medical profession is reflected in the fact
    that the majority of doctors in the USA are supporters of the Republican
    party, which is vehemently opposed to the healthcare reforms recently passed
    in the USA. It is the same bill about which the Times of India writes as
    follows:

    “The United States passed the most significant piece of social legislation
    in half a century on a historic Sunday night in a move aimed at providing
    affordable health care to all Americans and reigning in runaway costs.

    The landmark transformation in the US health care system, which accounts for
    one-sixth of the US's $13 trillion economy, was clinched in a 219-212 vote
    in the House of Representatives. No Republican voted for the bill.”

    http://timesofindia.indiatimes.com/world/us/Obama-scores-big-win-on-health-care/articleshow/5713737.cms

    SUMMARY--Hospitals in both India and the USA have good and bad points. Which
    system is better may be arguable. However, it would appear that
    cost-effectiveness is higher in AIIMS / Indian corporate hospitals compared
    to the US hospitals.

    M C Gupta
    23 March 2010**
    **

    ReplyDelete
  74. *QUESTION—If a pharma company offers to sponsor the visit of a doctor for
    the purpose of delivering a lecture as an invited speaker at a medical
    conference, can he accept such offer without violating the regulation
    6.8.1of the Indian Medical Council (Professional conduct, Etiquette and
    Ethics) Regulations, 2002?*

    * *

    *ANSWER—*

    A-- Regulation 6.8.1 reads as follows:

    “6.8.1 In dealing with Pharmaceutical and allied health sector industry, a
    medical practitioner shall follow and adhere to the stipulations given
    below:-

    a) Gifts: A medical practitioner shall not receive any gift from any
    pharmaceutical or allied health care industry and their sales people or
    representatives.

    b) Travel facilities: A medical practitioner shall not accept any travel
    facility inside the country or outside, including rail, air, ship, cruise
    tickets, paid vacations etc. from any pharmaceutical or allied healthcare
    industry or their representatives for self and family members for vacation
    or for attending conferences, seminars, workshops, CME programme etc. as a
    delegate.

    c) Hospitality: A medical practitioner shall not accept individually any
    hospitality like hotel accommodation for self and family members under any
    pretext.

    d) Cash or monetary grants: A medical practitioner shall not receive any
    cash or monetary grants from any pharmaceutical and allied healthcare
    industry for individual purpose in individual capacity under any pretext.
    Funding for medical research, study etc. can only be received through
    approved institutions by modalities laid down by law / rules / guidelines
    adopted by such approved institutions, in a transparent manner. It shall
    always be fully disclosed.”

    B--The ban is only on travel facilities for vacation or for attending
    conferences, seminars, workshops, CME programme etc. as a delegate. Giving a
    lecture seems to be excluded.

    -- M C Gupta
    MD (Medicine), LL.M.
    Ex-Professor
    Practicing advocate

    ReplyDelete
  75. QUESTION—If the patient alleges in his complaint that the nature of
    prognosis and complications was not explained to him by the doctor, can
    audio and video recordings of such explanation help in court?

    *

    *ANSWER—*Yes, they will help. However, producing such evidence in the court
    is cumbersome and the need for them should not arise if care is taken to
    record proper written consent.

    * *

    *QUESTION-- **I am an MD (pathology) and LLB. How can I utilise my law
    degree? How can I register in the Supreme Court Bar Association? *

    * *

    *ANSWER*—You can utilise your law degree in the following ways:

    1—You can join the bar and practice as a lawyer. In that case, you will have
    to give up medical practice. You can apply for the membership of SCBA only
    after you join the bar.

    2—You can continue as a medical practitioner and utilise your law degree
    for:

    a—Setting up a medico-legal consultancy where you can provide consultancy
    and even draft the pleadings but engage the services of an advocate for
    court work. Many doctors are doing that and earning well.

    b—Studying for LL.M., which can be done through distance learning, and,
    even, PhD in law. This will strengthen your legal base very much. Some
    doctors have done PhD in law.

    c—Writing law books.

    3—You can apply and get selected for membership of Consumer Forum /
    Commission when vacancies are advertised. Some doctors have already been is
    such positions.

    4-- You can apply and get selected as part-time or full time lecturer in a
    law college.

    5—You can pass LL.M. from the USA and then set up medico-legal consultancy /
    practice there.

    -- M C Gupta
    MD (Medicine), LL.M.

    ReplyDelete
  76. QUESTION--** What precautions should I take in routine obstetric case?***
    * *
    *ANSWER—*The basic principles are the same as in any other specialty or general practice: Take informed consent; Document well; Do things as per
    accepted principles and practice of medicine; Do not venture beyond your
    domain, etc. Some special points in relation to Gyn-Ob practice as regards
    my own medico-legal cases or those reported in literature are as follows:

    1—Consent—A doctor client of mine had performed hysterectomy when she opened
    the patient up for ectopic pregnancy, because the site of pregnancy was very
    close to the fundus and hysterectomy was the proper and inevitable thing to
    do. The patient was a Muslim lady and later filed a complaint saying the
    uterus was removed without her consent even though her religion did not
    permit. No written consent had been taken for hysterectomy. The doctor won
    the case, but with difficulty.

    In Samira Kohli v. Dr. Prabha Manchanda & Anr., decided by the Supreme Court
    on 16 January 2008, the doctor was held guilty and compensation was awarded
    because she took out the ovaries, Fallopian tubes and uterus of an unmarried
    woman aged 40 years without her consent, though it was done in her best
    interest.

    2—Records--In a case where my client was the doctor, it was alleged that a
    part of the placenta had been retained inside the uterus and the doctor was
    negligent. The case sheet did not carry any record that the placenta was
    delivered and examined and found to be full and complete. The absence of
    such a noting, which should be a routine one, made the case pretty
    difficult.

    3—Acting against norms--In a few cases of mine, the patient died of
    post-partum hemorrhage when the doctor had recorded hemoglobin as 8 gm.%
    during ante-natal period. No adequate efforts had been made to prescribe /
    ensure giving of hematinics. Blood group had not been determined
    ante-natally and no arrangements for blood transfusion had been made /
    advised. This was clear negligence.

    4—Venturing beyond competence—An Ayurvedic lady doctor attempted MTP but was
    incompetent and the patient died. She should not have done something beyond
    her competence. A case is still pending against her under section 304A.

    -- M C Gupta
    MD (Medicine), LL.M.
    Ex-Professor

    ReplyDelete
  77. QUESTION—When compensation is provided by the court to an aggrieved party
    on grounds of medical negligence in a complaint against the hospital, the
    surgeon and the anesthetist, how does the court decide how much is to be
    paid by whom? *

    * *

    *ANSWER—*The following principles, guidelines and practices are followed by
    the courts:

    1—When a patient is treated at a hospital, he chooses the hospital and not a
    consultant working there. He can be treated by any doctor working at the
    hospital. Often, he is treated by several doctors during the hospital stay.
    The fees are paid to the hospital, not to the consultant. Thus the privity
    of contract is between the patient and the hospital and not between the
    patient and the doctor. Therefore the primary liability lies upon the
    hospital.

    2—It is not necessary that all the three respondents will have to pay.
    Judgment may be adverse against only the anesthetist or only the surgeon or
    against both depending upon the facts and circumstances of the case.
    However, adverse judgment will almost always be there against the hospital
    also if negligence is proven.

    3—The liability of a doctor does not depend upon whether he is a full time
    employee or just a consultant attached to the hospital. If he is negligent,
    he can’t escape liability by claiming that he is not an employee of the
    hospital.

    4—Even if the negligent act has been committed by a nurse or nursing
    assistant, the liability would still lie upon the employer hospital.

    5—The common practice is not to apportion the quantum of damages to be paid
    separately by the hospital, the surgeon and the anesthetist. The consumer
    forum’s order usually says that the three are liable to pay the amount
    awarded jointly and severally. This means that it is an individual as well
    as joint liability. The courts usually expect in such cases that the
    hospital should pay up the amount and, if necessary, it can recover any
    amount from the doctors. However, sometimes the order specifies how much
    would be paid by a specific doctor concerned. This may be done in a case
    where the negligent act of the doctor is strikingly manifest at an
    individual level. In general, there are no laid down guidelines or rules
    regarding how to apportion the damages. It all depends upon the facts and
    circumstances of each case.

    -- M C Gupta
    MD (Medicine), LL.M.
    Ex-Professor

    ReplyDelete
  78. QUESTION—When compensation is provided by the court to an aggrieved party
    on grounds of medical negligence in a complaint against the hospital, the
    surgeon and the anesthetist, how does the court decide how much is to be
    paid by whom? *

    * *

    *ANSWER—*The following principles, guidelines and practices are followed by
    the courts:

    1—When a patient is treated at a hospital, he chooses the hospital and not a
    consultant working there. He can be treated by any doctor working at the
    hospital. Often, he is treated by several doctors during the hospital stay.
    The fees are paid to the hospital, not to the consultant. Thus the privity
    of contract is between the patient and the hospital and not between the
    patient and the doctor. Therefore the primary liability lies upon the
    hospital.

    2—It is not necessary that all the three respondents will have to pay.
    Judgment may be adverse against only the anesthetist or only the surgeon or
    against both depending upon the facts and circumstances of the case.
    However, adverse judgment will almost always be there against the hospital
    also if negligence is proven.

    3—The liability of a doctor does not depend upon whether he is a full time
    employee or just a consultant attached to the hospital. If he is negligent,
    he can’t escape liability by claiming that he is not an employee of the
    hospital.

    4—Even if the negligent act has been committed by a nurse or nursing
    assistant, the liability would still lie upon the employer hospital.

    5—The common practice is not to apportion the quantum of damages to be paid
    separately by the hospital, the surgeon and the anesthetist. The consumer
    forum’s order usually says that the three are liable to pay the amount
    awarded jointly and severally. This means that it is an individual as well
    as joint liability. The courts usually expect in such cases that the
    hospital should pay up the amount and, if necessary, it can recover any
    amount from the doctors. However, sometimes the order specifies how much
    would be paid by a specific doctor concerned. This may be done in a case
    where the negligent act of the doctor is strikingly manifest at an
    individual level. In general, there are no laid down guidelines or rules
    regarding how to apportion the damages. It all depends upon the facts and
    circumstances of each case.

    -- M C Gupta

    MD (Medicine), LL.M.

    Ex-Professor

    ReplyDelete
  79. *QUESTION--** Can law decide that fees beyond a limit cannot be charged?*

    * *

    *ANSWER—*No. Law does not decide the fees charged by professionals for their
    services. However, the following suggestions are in order according to legal
    principles / guide lines:

    1—There should be transparency. Fees should be told to the patient in
    advance and clearly displayed so that the consumer can make an informed
    choice and does not feel trapped or cheated afterwards.

    2—The following regulations, as appearing in the Indian Medical Council
    (Professional conduct, Etiquette and Ethics) Regulations, 2002, should be
    complied with:

    *“1.8 Payment of Professional Services: *The physician, engaged in the
    practice of medicine shall give priority to the interests of patients. The
    personal financial interests of a physician should not conflict with the
    medical interests of patients. A physician should announce his fees before
    rendering service and not after the operation or treatment is under way.
    Remuneration received for such services should be in the form and amount
    specifically announced to the patient at the time the service is rendered.
    It is unethical to enter into a contract of "no cure no payment". Physician
    rendering service on behalf of the state shall refrain from anticipating or
    accepting any consideration.

    *3.7 Fees and other charges:
    *
    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.”

    -- M C Gupta

    MD (Medicine), LL.M.

    Ex-Professor

    Practicing advocate

    mcgupta44@gmail.com

    25 March 2010

    ReplyDelete
  80. QUESTION--** What should be the language of consent form in an obstetric
    case?

    *

    *ANSWER—*

    1--In every case, the language of consent should be the one which the person
    giving the consent understands. It is wrong on the part of the hospitals to
    have consent forms only in English. The consent form should be in the local
    language or in two languages—English and the local language. Consent is not
    valid unless it is an informed consent. The consent cannot be an informed
    consent if it is in a language that the consenter does not understand. In
    any case, even if the printed form is in a language that the patient
    understands, it is always desirable that the person giving the consent
    should do so in a few words in his own hand writing.

    2—As regards the content of the consent form, the exact language or
    phraseology is not important. There is no basic difference between the
    consents in respect of an obstetric or non-obstetric case. What is important
    is that the consenter should have been told in writing things like—

    a—What is the nature of the procedure for which the consent is being given;

    b—What is the necessity for doing the procedure and what is the risk if it
    is carried out and the risk if it is not carried out;

    c—What are the alternate procedures / modes of treatment;

    d—What is the type of anesthesia to be used and what are its risks.

    -- M C Gupta

    MD (Medicine), LL.M.

    Ex-Professor

    ReplyDelete
  81. QUESTION—How is it that acts like ’** **West Bengal Medicare Service
    Persons & Medicare Service Institutions (Prevention of Violence & Damage to
    Property) Act, 2009” are there in many other states such as Delhi, Punjab,
    Haryana, Tamilnadu, Andhra Pradesh, Maharashtra, Rajasthan, Madhya Pradesh
    etc., but not in Uttarakhand.
    ** ***

    *ANSWER—*It is because health is a state subject and it is for the state of
    Uttarakhand to make an act for the state. If the state wants a short cut,
    its legislature can adopt a resolution to implement in the state the act in
    some other state, say, Delhi. A further short cut, avoiding even the delay
    for passage of such resolution by the assembly, would be an ordnance by the
    governor, pending legislation by the legislature. But, even short cuts do
    not happen on their own. It is for the IMA, Uttarakhand, to make appropriate
    noise and make a demand. Another method would be to file a PIL in the state
    High Court, petitioning the court to pass appropriate directions to the
    state government in this regard. Though courts do not usually pass orders
    for the state to do certain things as regards policy matters, the court is
    likely to suggest to the state to take a suitable action in this regard.
    This would likely spur the state into action.

    -- M C Gupta

    MD (Medicine), LL.M.
    Ex-Professor
    Practicing advocate
    mcgupta44@gmail.com
    25 March 2010

    ReplyDelete
  82. Contd ...

    *B--*Martin F. D'Souza v. Mohd. Ishfaq, decided on 17 February, 2009,-- No cognizance of a complaint of medical negligence can be taken by the consumer Forums / Commissions in the absence of a report from a doctor or committee
    of doctors certifying that there was negligence.

    2—Doctors should not try to bribe the police. It is a sure indicator to the police that the doctor is afraid and harassable.

    3—Doctors, if called to the police station in connection with a complaint at a particular time and date, may go there at the appointed time and date but if nobody attends to them, they should not go there repeatedly. At the very first visit, even if the investigating officer is not there, the doctor should give, under acknowledgement, a typed copy of his version / reply, preferably prepared by a lawyer. If the police staff refuses to accept it, the doctor should send it by registered post. This will avoid his being called to the police station repeatedly.

    4—It is always better to engage an advocate.

    5—It is very helpful to procure written expert opinions from other specialist doctors as soon as possible.

    -- M C Gupta

    ReplyDelete
  83. QUESTION--** In spite of Supreme courts directives, doctors are frequently harassed and arrested by Police. How can we stop it?

    *ANSWER*—Police can only try to harass. Whether we feel harassed or not depends on us. Just as a dog runs after one who is running away in fear, so does the police threaten those who are afraid. If a doctor has done no wrong, he need not be afraid of police. Even if he has done wrong, he should be confident that,, legally, everyone is innocent unless proved otherwise
    and he should stand his ground and take cool, logical, bold steps as necessary, rather than get panicky. These steps are as follows:

    1—Doctors should know the necessary provisions of law, such as the following two judgments of the Supreme Court:

    A-- Jacob Matthew v. State of Punjab, *decided by the Supreme Court on August 5, 2005:*

    “A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness
    or negligence on the part of the accused doctor.”—(para 52)

    “(6) The word 'gross' has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be
    so held, must be of such a high degree as to be 'gross'. The expression 'rash or negligent act' as occurring in Section 304A of the IPC has to be read as qualified by the word 'grossly'.

    (7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or
    failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the
    injury which resulted was most likely imminent.”

    “….we propose to lay down certain guidelines for the future which should govern the prosecution of
    doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless
    the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a
    doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam's test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.”

    * * CONTD>>>>

    ReplyDelete
  84. QUESTION- DOES THE MUMBAI HIGH COURT JUDGEMENT IN DR.NARKAR VS DADAR AVNTI SOC.CASE,STATING THE CLOUSER OF NURSING HOMES IN RESIDENTIAL PREMICES WITHOUT SEPARATE ACCESS/STAIRCASE TO PT.S AND HOSPITAL STAFF AFTER 31st March 2010 ,ALSO APPLY TO PATHOLOGY LABS ALSO? IS IS APPLICABLE WITHIN MUMBAI AND ITS SUBERBS OR IT IS FOR WHOLE OF MAHARASHTRA? I HAVE A CLINICAL PATHOLOGY LAB IN DIST.THANE,MAHARASHTRA AND INTEND TO SHIEFT IN A NEARBY RESIDENTIAL PREMICES ON THE FIRST FLOOR AND DONT HAVE SEPARATE ACCESS.I AM IN DILEMA WHETHER TO SHIEFT OR NOT, KINDLY GUIDE ME.

    ReplyDelete
  85. *QUESTION-- Are diagnostic centers run by technicians alone, without
    employing doctors, illegal? Is treatment based on reports of such centres an
    act of medical negligence?*

    * *

    *ANSWER—*

    A-- Diagnostic centers run by technicians alone, without employing doctors,
    are illegal as held by 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. , reproduced below:

    “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 and 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.”

    B—Treatment based upon such reports is not by itself an act of negligence on
    the part of the doctor. The treatment itself must be shown to be negligent.
    If it is alleged that the patient suffered because of wrong report given by
    such a laboratory, it would be unlikely that the doctor is held guilty for
    the wrong report unless he had a nexus with the laboratory. In such a
    situation, the complainant would be well advised to implead the concerned
    laboratory also as a respondent in the complaint alleging negligence.

    -- M C Gupta

    MD (Medicine), LL.M.

    Ex-Professor

    ReplyDelete
  86. *QUESTION--** **What is your opinion about doctors giving and taking a
    commission for rendering professional services.*

    * *

    *ANSWER*—My opinion is that it is illegal in terms of regulation 6.4 of the
    Indian Medical Council (Professional conduct, Etiquette and Ethics)
    Regulations, 2002, reproduced below:

    *“6.4 Rebates and Commission**:
    *
    6.4.1 A physician shall not give, solicit, or receive nor shall he offer to
    give solicit or receive, any gift, gratuity, commission or bonus in
    consideration of or return for the referring, recommending or procuring of
    any patient for medical, surgical or other treatment. A physician shall not
    directly or indirectly, participate in or be a party to act of division,
    transference, assignment, subordination, rebating, splitting or refunding of
    any fee for medical, surgical or other treatment.

    6.4.2 Provisions of para *6.4.1* shall apply with equal force to the
    referring, recommending or procuring by a physician or any person, specimen
    or material for diagnostic purposes or other study / work. Nothing in this
    section, however, shall prohibit payment of salaries by a qualified
    physician to other duly qualified person rendering medical care under his
    supervision.”

    -- M C Gupta
    MD (Medicine), LL.M.

    ReplyDelete
  87. *QUESTION-- Are diagnostic centers run by technicians alone, without
    employing doctors, illegal? Is treatment based on reports of such centres an
    act of medical negligence?*

    * *

    *ANSWER—*

    A-- Diagnostic centers run by technicians alone, without employing doctors,
    are illegal as held by 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. , reproduced below:

    “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 and 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.”

    B—Treatment based upon such reports is not by itself an act of negligence on
    the part of the doctor. The treatment itself must be shown to be negligent.
    If it is alleged that the patient suffered because of wrong report given by
    such a laboratory, it would be unlikely that the doctor is held guilty for
    the wrong report unless he had a nexus with the laboratory. In such a
    situation, the complainant would be well advised to implead the concerned
    laboratory also as a respondent in the complaint alleging negligence.

    -- M C Gupta
    MD (Medicine), LL.M.
    Ex-Professor

    ReplyDelete
  88. QUESTION—** When a patient gets treatment at a hospital, he is the consumer
    of the services provided by the hospital. The consumer complaint should lie
    against the hospital, not the treating doctor. Why do the consumer courts
    allow the patient to file a consumer complaint against an individual doctor?
    *

    * *

    *ANSWER—*Many reasons can be given as to why the consumer complaint against
    a treating doctor is valid. Some reasons are given below:

    1—When the complainant alleges medical negligence, it is inevitable that
    even if the hospital alone is made the respondent, the hospital will have to
    ask the concerned doctor to explain his stand. The doctor may choose not to
    respond to the hospital’s request and, in the interest of justice, summons
    may have to be issued to the doctor to testify in the court. This will
    entail avoidable delay and also harassment to the doctor. At present,
    doctors have rarely to be present themselves in the consumer court.

    2—The legal nature of the hospital as an entity may be unclear. Some are
    corporate hospitals; some are government hospitals; some are small hospitals
    that may not even be registered. Only a few states have nursing home acts or
    clinical establishment acts. The ownership and management etc. of a hospital
    may be unclear. All this may delay the legal process at the “service stage”
    itself. (Service here means the act of serving the court summons upon the
    opposite party.)

    3—The same doctor may treat a patient partly as a hospital patient and
    partly as his private patient in his private clinic. When he alleges
    negligence in treatment, the treatment cannot be artificially separated into
    private clinic treatment and hospital treatment.

    Please note that the consumer courts have been established to dispense
    speedy justice as summary proceedings by avoiding arguments and delays
    related to procedure. Please also note that till today, probably no treating
    doctor has pleaded as to why a case has been filed against him and not
    against the hospital alone. Your question is, hence, merely a hypothetical /
    theoretical question.

    M C Gupta

    MD (Medicine), LL.M.

    Ex-Professor

    ReplyDelete
  89. *QUESTION-- Can a hospital refuse a request for supplying the medical record
    in case of a medico-legal if the request is not accompanied by an NOC (No
    Objection Certificate) from the IO (Investigation Officer)?*

    * *

    * *

    *ANSWER--* It is the right of a patient or his authorised attendant to get
    from the hospital a copy of his medical record in terms of regulation 1.3.2
    of the Indian Medical Council (Professional conduct, Etiquette and Ethics)
    Regulations, 2002, which reads as follows:

    “1.3.2. If any request is made for medical records either by the patients /
    authorised attendant or legal authorities involved, the same may be duly
    acknowledged and documents shall be issued within the period of 72 hours.”

    Violating this regulation amounts to professional misconduct in terms of
    regulation 7.2, which reads:

    *“7. MISCONDUCT : *

    The following acts of commission or omission on the part of a physician
    shall constitute professional misconduct rendering him/her liable for
    disciplinary action
    *
    7.1 Violation of the Regulations*: If he/she commits any violation of these
    Regulations.
    *
    7.2* If he/she does not maintain the medical records of his/her indoor
    patients for a period of three years as per regulation 1.3 and refuses to
    provide the same within 72 hours when the patient or his/her authorised
    representative makes a request for it as per the regulation 1.3.2.”

    The above right cannot be unilaterally abrogated by the hospital except by a
    specific legal provision or by orders of the concerned court. I do not know
    of any legal provision barring the right of the patient. I have no reason to
    believe that any court will, ordinarily, deny such right.

    However, it is understandable that when the case is with the police or in
    the court, the original records should not be given.

    If a doctor in charge of the hospital / records section / concerned
    department does not supply the record within 72 hours, a complaint against
    the concerned doctor should be made to the medical council.

    M C Gupta
    MD (Medicine), LL.M.
    Ex-Professor

    ReplyDelete
  90. *QUESTION—Is it valid and legal for the medical council of one state to ask
    a doctor to get registered with it afresh even though his name is already
    included in the Indian Medical Register by virtue of his being already
    registered with the medical council of another state?***

    * ***

    * ***

    *ANSWER—*It is invalid and illegal. The practice continues because doctors
    are content with spending a few thousand rupees unnecessarily and exposing
    themselves to multiple concurrent jurisdictions of different medical
    councils, rather than fight for their rights and file a writ petition
    against the concerned state medical council that indulges in an illegal
    practice to the detriment of doctors’ interests and welfare. Nobody can help
    those who are chicken hearted and willingly tolerate injustice. They deserve
    to suffer. Lamenting at individual level can achieve nothing. I don’t know
    why the IMA or its state and district branches or any other association of
    doctors cannot challenge the illegality being perpetuated by the state
    medical councils.

    * *
    -- M C Gupta
    MD (Medicine), LL.M.

    ==============================================

    *QUESTION--Regulation 1.7 of the Indian Medical Council (Professional
    conduct, Etiquette and Ethics) Regulations, 2002, r**eads:*

    * “**1.7 Exposure of Unethical Conduct: A Physician should expose, without
    fear or favour, incompetent or corrupt, dishonest or unethical conduct on
    the part of members of the profession.”
    **I wrote to the MCI exposing **unethical conduct on the part of members of
    the profession, giving all necessary details and evidence. The MCI did not
    take any action. On the other hand, the MCI sent a letter No
    MCI-211(2)(497)/2008/17663 dated 23/1/09, asking me to send the ‘complaint
    ‘on prescribed Performa along with a bank DD of Rs 5000/- as a prescribed
    fee for the complaint to be entertained. What should I do?*

    * *

    *ANSWER—*The Indian Medical Council (Professional conduct, Etiquette and
    Ethics) Regulations, 2002, have the force of law and are binding upon all
    medical practitioners. They are equally binding on the MCI itself. You have
    done your lawful part in a proper manner. You have performed your duty as
    cast upon you by virtue of the said regulation. No fee can be levied for
    discharging a duty imposed by law. The MCI has wrongly treated your letter
    as a complaint as if you were complaining, as an aggrieved patient, against
    alleged misconduct by a physician. The MCI is clearly in the wrong.

    You should proceed as follows:

    1—Consult an advocate and send, in your name, a fresh representation drafted
    by the lawyer, requesting the MCI to take necessary action as per law within
    four weeks.

    2—If the MCI does not take necessary action within the notice period, file a
    writ petition in the Delhi High Court against the MCI, praying to the
    Hon’ble Court that:

    FIRSTLY, the respondent MCI may be directed to treat your letter as a letter
    of exposure by a physician and not as a letter of complaint by an aggrieved
    patient and to take necessary expeditious action without any payment of
    fees; and,

    SECONDLY, the respondent MCI may be directed to henceforth stop the practice
    of charging Rs. 5000/- for a complaint and Rs. 10,000/- for an appeal
    because such charges are illegal and against the spirit and mandate of the
    Indian Medical Council Act, 1956, under which the MCI was established as a
    statutory body fully funded by the GOI, there being no such comparable
    precedent in case of the Press Council of India and the Dental, Pharmacy and
    Nursing Councils etc.

    I hereby offer to provide my services for the above at highly concessional
    rates since it is a sort of public cause.

    -- M C Gupta
    MD (Medicine), LL.M.

    ReplyDelete
  91. 5—Hospital records may be of two types: individual patient records and the registers related to OPD, hospital admissions, MLC cases etc. Whatever limit is decided by the hospital for maintaining individual patient records, a
    comparatively much longer limit should be set for preserving the registers etc. and the MLC records.

    6—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.

    7-- While searching the internet, I learnt that court records in USA have to be preserved for 30 years after the closure of the case.

    8—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.

    9— 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.”

    If this is desirable for individual practitioners, it should be mandatory for hospitals. Once the records are computerized, storage space and retrieval would not be a problem and the question as to how long should
    hospital records be preserved would become a bit less debatable / crucial.

    M C Gupta

    ReplyDelete
  92. *QUESTION—I have worked as hospital administrator in various hospitals. They
    maintain medical records for different periods of time. Even though the MCI requirement is to maintain records for 3 years, still the records are being kept for 10 years or more. What are your comments?*

    *ANSWER—My comments are as follows:*

    1—Hospital records are hospital property. Nobody can tell anybody how long one should preserve his property. Some hospitals may like to preserve the records for 30 years and that’s fine. Some may like to preserve records for
    5 years, and that is fine too. The only liability that law may impose upon a hospital is that the records must not be destroyed before a certain minimum period.

    2—The MCI regulations are meant for medical practitioners registered with the MCI and are not applicable to hospitals. Hospitals are outside the jurisdiction of the MCI.

    The Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002. Regulation 1.3.1 reads: “Every physician shall maintain the medical records pertaining to his / her indoor patients for a period of
    3 years from the date of commencement of the treatment in a standard proforma laid down by the Medical Council of India and attached as Appendix
    3”.

    3—As per the provisions of the Consumer Protection Act, 1986, a limitation period of 2 years has been prescribed. However, courts have ruled that the 2 year limit can start from the date the alleged negligence comes to notice of
    the patient. From a legal point of view, it would be better to keep records for a longer period, say 5 years, in those cases where there may be a likelihood of a legal case being instituted. If legal proceedings have
    started, the records should be kept for the duration of the proceedings and even thereafter for a year to allow for appellate proceedings. As a matter of fact, such records should preferably be kept for 5-10 or more years
    because they can serve as reference material for medico-legal research later.

    4—In the absence of legal rules specific to hospitals, , it is best for hospitals to maintain records as per any other guidelines recommended by any authority or hospital administration textbooks or as per the practice in major government hospitals such as the AIIMS.

    CONTD

    ReplyDelete
  93. c—No. The physician or any other person has no right to give consent on
    behalf of the patient. Such right may accrue to the physician only when the
    patient is is incapable of giving consent and is unaccompanied by a relative
    or guardian competent to give consent and when such consent and related
    testing is in the interest of the patient, especially when it is necessary
    to save his life. When such a situation arises, it is best that the consent
    should be given on the patient’s behalf not by a single doctor but by a
    committee of three persons.

    d—If the patient refuses consent for HIV testing and the treatment /
    procedure / surgery, 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.

    If the above steps are followed, the doctors would be legally safe while, at
    the same time, adhering to the code of medical ethics.

    -- M C Gupta
    MD (Medicine), LL.M.

    ReplyDelete
  94. QUESTION-- We want to get NABL and NABH accreditation for our laboratory
    and hospital respectively. As per these guidelines, consent is mandatory. It
    is an unwritten policy in our hospital that all patients undergoing surgery
    should have a prior viral screening ( HIV + HBsAg / HCV) so as to avoid
    health hazard to others, including the medical and paramedical personnel
    involved in patient management.*

    * *

    *In this context, please address the following questions:*

    *
    a : Is it a must to take the patient's consent for HIV testing ?
    b : Can a patient refuse to give consent / undergo test ?
    c : If the patient refuses, can the physician still insist and give consent
    on behalf of the patient ?*

    *d: If the patient refuses, what course is open to the doctors?*

    *ANSWER—*

    * *

    a—Yes. 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, 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.

    b—Yes. 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.

    CONTD ...

    ReplyDelete
  95. *QUESTION--I am working in an industrial organisation. The factory maintains
    quarters for employees and runs a hospital. In one of the quarters a lady
    was found to be apparently for a few hours. The neighbours informed the
    management. Management informed the police and wanted one doctor from the
    hospital to check whether the patient is dead. The victim was not brought
    down. What is the duty of the doctor and hospital is such case?*

    * *

    *ANSWER—*

    * *

    SITUATION*--*The hospital is owned by the organisation. The doctor is an
    employee of the organisation. The employer asks the employee to do something
    in the course of his duty (namely, to examine a human being within the
    campus of the organisation and to find whether the person is alive or dead
    and, if alive, to render necessary medical help). This is a legitimate task
    given to an employee by the employer.

    DOCTOR’S DUTY--The doctor should do as told / required. He should go to the
    place along with a colleague / assistant and necessary gadgets / medicines /
    ambulance and do as follows:

    a—Examine the person and determine if she is alive or dead. If found dead,
    he should document this fact in his report, along with basic information
    like the time and place of visit; position of the body; any apparent injury
    or abnormal marks on the body; any other important attendant circumstances
    etc. he should give the report, preferably signed both by himself and his
    colleague / assistant, to the hospital management.

    b—If found alive, the doctor should give necessary emergency treatment at
    the spot and arrange for transfer to hospital.

    HOSPITAL’S DUTY—If the person is found dead as per the doctor’s report, the
    hospital should inform the police for further necessary action.

    -- M C Gupta

    MD (Medicine), LL.M.

    ReplyDelete
  96. QUESTION—How much quantity of drugs can be stored in small set-ups where
    doctors themselves are dispensing medicines to their own patients without
    there being any separate chemist / pharmacist counter?*

    * *

    *ANSWER*—Doctors should be aware of Regulation 6.3 of the Indian Medical
    Council (Professional conduct, Etiquette and Ethics) Regulations, 2002,
    which is reproduced below:

    “6.3 Running an open shop (Dispensing of Drugs and Appliances by
    Physicians): - A physician should not run an open shop for sale of medicine
    for dispensing prescriptions prescribed by doctors other than himself or for
    sale of medical or surgical appliances. It is not unethical for a physician
    to prescribe or supply drugs, remedies or appliances as long as there is no
    exploitation of the patient. Drugs prescribed by a physician or brought from
    the market for a patient should explicitly state the proprietary formulae as
    well as generic name of the drug.”

    In accordance with the spirit of the above regulation, doctors may use their
    own discretion as to how much quantity of drugs they should store, so as to
    avoid a charge that they are running a sort of chemist shop.

    -- M C Gupta

    MD (Medicine), LL.M.

    ReplyDelete
  97. *QUESTION—False complaints are often filed against doctors alleging
    **misbehaviour,
    indecent behaviour and sexual exploitation etc. What preventive measures can
    be used? Can IP cameras/ CCTV cameras be legally used for this purpose?*

    * *

    *ANSWER—*

    1—The doctor should try to identify potential complainants. These will
    include women and unaccompanied children, as also those patients who are of
    unsound mind or are not fully conscious. Exercise special care in such
    cases.

    2—In general, have another person in the room while examining a potential
    complainant. In case of female patients, the other person must be a female.

    3—In specially sensitive cases, as per your discretion, let the other person
    make a written and signed endorsement on the medical case sheet as follows:
    “certified that the examination of the patient named……………..was carried out
    by Dr……..in my presence and I noticed nothing untoward at the time of the
    examination and also nothing untoward was complained of by the patient.
    xxxxx (Signature), along with name, address, date, place.”

    4—The use of IP cameras/ CCTV cameras may be legally permissible as long as
    these are not used clandestinely, without the patients’ knowledge or
    permission. Clear notices should be displayed in the areas where the cameras
    are installed and also at the reception area of the hospital. The consent
    form should carry a clause that “I know that the hospital uses IP cameras/
    CCTV cameras at pre-informed places. I have read the hospital policy
    regarding confidentiality of the audio / video records generated. I hereby
    give consent for the same.”

    5—From a practical point of view, I would discourage you from using IP
    cameras/ CCTV cameras in wards and examination rooms. Even after the consent
    is obtained, nothing prevents the patient or anybody else from filing a
    consumer or criminal or other complaint / suit / PIL against the hospital,
    alleging encroachment of privacy. The courts are likely to be unsympathetic
    to the hospital. The hospital and the doctors should use such devices only
    after their use is permitted by the state health directorate / nursing Home
    cell in case of hospitals and by the MCI in case of doctors. I suggest that
    you should get clearance from these organisations before installing such
    devices.

    6—However, I suggest that it would be useful to install such devices in the
    entry / reception area of the hospital where unsocial elements / hooligans
    are likely to indulge in violence against the hospital. If these devices are
    used, the reception area should clearly carry a notice that this (or any
    other) area is covered by automatic photography safety devices.

    -- M C Gupta

    MD (Medicine), LL.M.

    ReplyDelete
  98. QUESTION--Can a rape case victim refuse a medical examination? If yes, how
    would the IO (Investigating Officer) proceed with the case?*

    * *

    * ANSWER—*Any person is fully entitled to refuse any type of medical
    examination. The medical examination of a rape patient constitutes valuable
    evidence in the court. In spite of this, nobody has a right to collect
    evidence forcibly and illegally. When the rape victim has declined medical
    examination, forcible conduct of such examination will be an actionable
    offence against the doctor and the police. If the lady refuses medical
    examination, the IO should record such fact and should proceed with
    investigation along the remaining lines.

    Having said this, it is important to point out that the refusal of consent
    for medical examination should be an informed refusal. This means that she
    should have been informed about the need for examination and the
    consequences of non-examination. This information should be given to her
    preferably by a doctor / social worker. The person giving the information
    should preferably be a lady.

    * *

    -- M C Gupta

    MD (Medicine), LL.M.

    ReplyDelete
  99. *QUESTION—Are physiotherapists, naturopaths and dietitians legally permitted
    to use the prefix “Dr.” before their name? If not, what can be done to stop
    this practice? Can practitioners of Indian System of Medicine use the prefix
    “Dr.” ?*

    * *

    ANSWER—

    1-- Physiotherapists, *naturopaths and dietitians legally permitted to use
    the prefix “Dr.” before their name.* It is clear from MCI Executive
    Committee’s letter No.MCI-5(3)/2008-Med./ dated 25th August, 2008 that
    “wherever any person found to be using the title of ‘Doctor’ as a prefix
    when such a person is holding a qualification in physiotherapy but not
    possessing any recognized medical qualification, he would be violating the
    provisions of Act of 1916 and as such he would expose himself for necessary
    action by filing or requiring the filing of a complaint in accordance with
    Section 7 of the 1916 Act for violation of Sections 6 and 6A of the extent
    applicable. “

    The full text of the letter can be seen at

    *https://mail.google.com/mail/?hl=en&shva=1#search/physio/1267127bda20d7bb
    *

    2--ISM practitioners having qualifications like BAMS, BUMS, BHMS etc. can
    legitimately call themselves as doctors in view of their qualifications

    3—Possible actions against violation of the guidelines laid down by the MCI:

    a—Complain to District medical authorities.

    b—Complain to police.

    c—Complaint to consumer court

    d—Complaint to medical council. [Delhi Medical Council Act, 1997, has
    specific provisions against quackery. A physiotherapist or dietitian calling
    themselves as Dr. can be pleaded as quackery.

    e—Complaint to Nursing Council; Pharmacy Council; Physiotherapy Council etc.
    if such qualified persons are calling themselves as Dr.

    f—Writ in High Court.

    All the above are possible legal procedures. Success depends upon how well a
    case is legally prepared and pursued. The practical problem is that lawyers
    need fees for work and individuals don’t want to pay to lawyers. The funds
    are available with IMA and branches, which should be active in this area,
    but they have other priorities of a personal and political nature.

    -- M C Gupta

    MD (Medicine), LL.M.

    Ex-Professor

    Practicing advocate

    ReplyDelete
  100. *QUESTION--* *L**egally speaking, are hospitals classified as "industry" in
    India?*

    *ANSWER— *

    * *

    *1--*The word industry has been defined in section 2(j) of the Industrial
    Disputes Act, 1947. This section has been interpreted by a seven judge bench
    of the Supreme Court in a 1978 in a case commonly referred to as the
    Bangalore Water Supply case. As per that interpretation, hospitals should
    come under the ambit of the term industry. That judgment continues to be
    the law so far.

    2— Section 2(j) of the Industrial Disputes Act, 1947, was substituted by
    Industrial Disputes (Amendment) Act, 1982, which, through section 2(c),
    substituted the existing section 2(j) by a new one, whereby hospitals and
    dispensaries were excluded from the definition of the term Industry.
    However, section 2(c) of the Industrial Disputes (Amendment) Act, 1982, has
    not so far been notified / enforced.

    3—The judicial developments regarding the interpretation of the term
    industry as used in section 2(j) are briefly traced below:

    a--Section 2(j) of the Industrial Disputes Act, 1947, defines industry to
    mean a business, trade, undertaking, manufacturing or calling of employers
    and includes any calling, service, employment handicraft or industrial
    occupation or avocation of workmen. However, in common parlance, ‘industry’
    is understood to signify an organised activity involving group of workers
    for manufacturing, trade or business. There is an apparent conflict between
    the common perception and the legal definition of industry as per the
    Industrial Disputes Act, 1947. It is a basic principle of law that courts
    have to rely upon the exact words in the statute when pronouncing a
    judgment.

    b--In 1953, in D.N. Banerji vs. P.R. Mukherji (1952 INDLAW SC 62, AIR 1953
    SC 58), the question before the court was whether a municipality may be
    considered an industry. They applied what was later called the ‘Analogous
    Activity Test’, according to which the definition under s. 2(j), that is,
    ‘any undertaking or calling’ must be understood to mean such undertaking or
    calling which is ‘analogous to the carrying on of a trade, business or
    manufacture’. Thus a municipal corporation was held to be an ‘industry’ even
    though it was engaged in sanitation and conservation without any
    profit-motives or investment of any capital, which were held irrelevant for
    an industry.

    .

    c--In 1960, in State of Bombay vs. Hospital Masdoor Sabha (1960 INDLAW SC
    47, AIR 1960 SC 610.), an industrial undertaking was held to imply any ‘
    systematic activity’ undertaken for production or distribution of goods or
    services ‘to the community at large’ with the help of employees. Hence,
    hospitals were held to come under the definition of industry

    d—In 1960, in Corporation of the City of Nagpur vs. Its Employees (1960
    INDLAW SC 90, AIR 1960 SC 675.), the analogous test laid down in Banerji
    Case was further modified. Various different departments (namely health,
    education, tax and general administration) of a municipality were held to
    be industry. The court observed that the emphasis is more on the organised
    activities implicit in trade or business than to equate the other activities
    with trade or business. With regard to the question of sovereign and
    non-sovereign functions of the state, the court held that the ‘predominant
    functions’ will be the criteria for ascertaining its true nature.

    CONTD

    ReplyDelete
  101. 4--SUMMARY & PRESENT POSITION:

    a--The hospitals are covered by the definition of the term industry as per
    the Industrial Disputes Act. However, it is possible for the courts to hold
    in specific circumstances that a hospital is not an industry, as was done by
    the Delhi High Court while deciding about the applicability of the
    Industrial Employment (Standing Order) Act, 1946, to hospitals.

    b—In summary, a hospital is an industry in terms of the definition of
    industry as interpreted by the Supreme Court in Bangalore Water Supply case.

    -- M C Gupta

    ReplyDelete
  102. e--In 1970, in the Management of Safdarjung Hospital, New Delhi vs. Kuldip
    Singh Sethi (AIR 1970 SC 1407), a six judge bench unanimously held that
    Safdarjung Hospital was not an industry, as the activities carried on by the
    hospital were not analogous to the carrying out of trade or business, the
    main activity being imparting of training, research and treatment. The court
    reiterated that the activity ‘must bear the definite character of trade or
    business or manufacture’ or must be capable of being described as or
    resulting in material services to the community at large. This overruled HMS
    where hospital was held to be an industry.

    f—In 1978, in Bangalore Water Supply And Sewerage Board Vs. A. Rajappa (1978
    Indlaw SC 260, Air 1978 SC 548.), a seven judge bench overruled a number of
    cases, including the Management of Safdarjung Hospital, New Delhi vs. Kuldip
    Singh Sethi case. A “triple test” was laid down according to which an
    undertaking is an industry where there is:

    “(1) Systematic activity;

    (2) Organised by co-operation between employer and employee; and

    (3) For the production and/or distribution of goods and services calculated
    to satisfy human wants and wishes.”

    It was held that ‘absence of profit motive of gainful objective is
    irrelevant be the venture in the public, joint, private or other sector. The
    true focus is functional and the decisive

    test the nature of the activity with special emphasis on the
    employer-employee relations’. It was held that the running of hospital is a
    welfare activity and not a sovereign function and hence is an industry.
    Hospital facilities, research products and training services are ‘services’
    and absence of profit or the performance of functions of training and
    research, would not take the institution out of the scope of industry.
    Therefore HMS was affirmed while Safdarjung Hospital was overruled.

    g--After the Bangalore Water Supply case, there seems to be an apparent
    trend / shift from the acceptance of such a liberal expansion of the ambit
    of IDA.

    -- In Coir Board, Ernakulum, Cochin vs. Indira Devi (1998 INDLAW SC 1627,
    AIR 1998 SC 2801), the court refused to accept that ‘such a sweeping test
    was contemplated by the Industrial Disputes Act or that ‘every organisation
    does useful service and employs

    people may be labeled as industry’. It recommended that the definition
    needs to be re-examined.

    .

    --In State of Uttar Pradesh vs. Jai Bir Singh (2005 INDLAW SC 766, (2005) 5
    SCC 1),

    the underlying reasons for this change in attitude have been adequately
    addressed. These reasons are based upon two basic grounds:

    (1) that the decision in BWS was not unanimous; and

    (2) the rejection of doctrine of noscitur-a-sociis (A word is known by the
    company it keeps--When a word is ambiguous, its meaning may be determined by
    reference to the rest of the statute).

    However, despite these apparent trends, the Bangalore Water Supply case
    continues to be the law.

    h—There was some dispute regarding the applicability of the Industrial
    Employment (Standing Order) Act, 1946, to the petitioner Indraprastha
    Medical Corporation Ltd.'s (Apollo Hospital), and in 2001, Delhi High Court
    held: : "It will be anomalous that a hospital which is undeniably an
    'industry' is held not to be an industrial establishment."

    This judgment was overruled on appeal by a division bench of the Delhi High
    Court in 2006, held that a hospital was not a workshop or an establishment
    in which articles were produced, adapted or manufactured. “The main activity
    of a hospital is to cure diseases and ailments and not to do washing,
    cleaning, generating, cold storage etc... These are only incidental
    activities...,” the judges observed. The Bench said the Supreme Court’s
    interpretation of the word “industry” in the Industrial Disputes Act had no
    application to the interpretation of the words “industrial establishment” in
    the Standing Order Act.

    CONTD

    ReplyDelete
  103. *QUESTION--In terms of the Assam Public Health Bill, 2010, passed by the
    state Assembly in April 2010, it will be mandatory for all private hospitals
    to provide free treatment for the first 24 hours. Please address the
    following questions:*

    * *

    *1--Whether Government can impose a duty upon a Private Hospital to give
    ''Free treatment'' ?*

    *2—Whether the government can pass a law in violation of the basic principle
    that a doctor has a right to choose as to whom he shall treat? *

    * *

    *ANSWER—*It is not possible to comment upon the bill / act without having a
    look at its text. Subject to change in view of what is actually contained in
    the Act, the answers are as follows:

    1—It is within the rights of the government to impose upon private hospitals
    the duty of giving free treatment during first 24 hours to patients coming
    for emergency treatment. Such right flows from the following:

    a—The right to enforce existing rules, not enforced so far, whereby private
    hospitals may already be under an obligation to provide free treatment in
    emergency. EXAMPLES: (i) Hospitals may have been allotted land by the
    government and as per the lease agreement, there may already be a provision
    for free treatment in emergency; (ii) Hospitals may have been registered
    under rules that make it binding upon the hospitals to provide free
    treatment in emergency.

    b—The right to health as a fundamental right as interpreted by the courts as
    a part of the Article 21 which reads: “No person shall be deprived of his
    life or personal liberty except according to procedure established by law”.

    c—The right to pass a legislation in furtherance of the Article 47 under
    Directive Principles of state Policy, whereby the said Article states that
    “The state shall regard ………..the improvement of public health as among its
    primary duties…..”.

    (However, in b and c above, it should be a duty of the state to compensate
    the hospitals for the financial burden imposed by free treatment.)

    2—The above Act does not violate the basic principle that a doctor has a
    right to choose as to whom he shall treat. The law is applicable to
    hospitals, not to individual doctors. A doctor employed in a hospital is
    duty bound to treat all patients admitted to the hospital. There is no
    question of a doctor in service having a right to choose as to whom he shall
    treat.

    -- M C Gupta

    ReplyDelete
  104. *QUESTION—The physiotherapists in our hospital are unwilling to stop using
    the prefix “Dr.” before their name. They have** told our HR that they have
    been empowered by their Council to use Dr. as prefix and PT as suffix. I am
    told the matter is pending in Court. What is the factual position?*

    * *

    *ANSWER—*The factual position is as follows:

    1—In terms of MCI Executive Committee’s letter No.MCI-5(3)/2008-Med./ dated
    25th August, 2008, “wherever any person found to be using the title of
    ‘Doctor’ as a prefix when such a person is holding a qualification in
    physiotherapy but not possessing any recognized medical qualification, he
    would be violating the provisions of Act of 1916 and as such he would expose
    himself for necessary action by filing or requiring the filing of a
    complaint in accordance with Section 7 of the 1916 Act for violation of
    Sections 6 and 6A of the extent applicable. “

    The full text of the letter can be seen at

    *https://mail.google.com/mail/?hl=en&shva=1#search/physio/1267127bda20d7bb*
    **

    * *

    2- According to the Chairman,* *Delhi Council for Physiotherapy and
    Occupational Therapy, : “As per the Council’s Act there is no provision as
    of now allowing physiotherapists to use the title ‘Doctor’ but a discussion
    on the matter is currently on.” This can be seen at the link given above.

    3—I am not aware of any pending litigation in this regard, but would be glad
    to know about it if anyone has related information. Any pending litigation
    does not alter the above picture unless the court has granted a stay in
    favour of the physiotherapists.

    You should ask the concerned physiotherapists to produce documentary support
    their claim.

    **

    -- M C Gupta

    MD (Medicine), LL.M.

    Ex-Professor

    ReplyDelete
  105. Is MHA a medical degree?*

    **

    *QUESTION—Suppose a person having MBBS degree gets the MHA degree from the
    AIIMS. Will this MHA be regarded as a medical or non-medical postgraduate
    degree?*

    **

    *ANSWER—*The degree of Master of Hospital Administration awarded to a doctor
    will be regarded as a medical postgraduate degree in terms of the Indian
    Medical Council Act, 1956.

    In the First Schedule of the Act, the note pertaining to AIIMS, in reference
    to MHA and PhD, reads as follows:

    "These are treated as medical degrees, provided these are awarded to the
    persons holding a recognised medical qualification under the Act".

    -- M C Gupta

    MD (Medicine), LL.M.

    ReplyDelete
  106. QUESTION—*Can an M Sc in non-medical microbiology be appointed as a
    lecturer in a medical college? Can those having MBBS degree and studying for
    M Sc in biochemistry or microbiology get regular promotions as per MCI
    rules?

    * *

    *ANSWER—*Exact rules have to be ascertained from the MCI or the medical
    college concerned. You may also like to check MCI web site. The practice
    followed in AIIMS is that MBBS degree holders are awarded a degree of MD in*
    *biochemistry or microbiology etc.

    * *

    -- M C Gupta

    ReplyDelete
  107. QUESTION-- I am an M.D. in Community Medicine and want to study for LL.B
    since I am interested in Medico-legal issues. How should I proceed?*

    * *

    *ANSWER—*I am happy about your interest. This is likely to help you in your
    career. You can develop Public health laws as an area of special interest.
    There are no distance learning courses in LL.B. You can join an evening law
    college geographically suitable to you. Passing is a cake walk for doctors,
    all of whom have high intelligence, analytical ability and capacity for
    hard work. BTW, studying for LL.B. does not need much hard work. The classes
    usually start in July. This being April, you should take care not to miss
    the dates for applying.

    --
    (Ex)Prof. M C Gupta
    MD (Medicine), MPH, LL.M.,
    Advocate & Medico-legal Consultant
    www.writing.com/authors/mcgupta44

    ReplyDelete
  108. *Should autopsy surgeons have the power to decide in which cases to perform
    autopsy?*

    * *

    *QUESTION— I have 7 years’ experience in forensic medicine. Based upon my
    experience, I have had a query for which I have not yet found an answer. The
    query is: “What is the role of Routine Post-Mortem Examination in
    Administration of justice?”.*

    * *

    * At present, autopsy compulsory by law in all suspicious/medico-legal
    cases. I think there is a need to amend the law since our economy cannot
    bear the burden of performing a large number of autopsies by experienced
    forensic experts. I believe that the practice of performing routine
    post-mortem examinations should be discontinued. Routine post-mortem
    examination is a burden on doctors. Such examination is often conducted
    carelessly by doctors without forensic knowledge or experience. Sometimes it
    is even performed by sweepers etc. and the doctor, believe me, does not even
    have a look at the tissues. It should be left to the forensic experts to
    decide whether a post-mortem is needed or not. Do you agree?

    *

    *ANSWER—*

    *1--*I agree that there is a shortage of forensic medicine experts. I
    disagree that because of this shortage, it should be left to forensic
    medicine experts to decide whether an autopsy is needed or not.

    2—I disagree that there is something like a “Routine Post-Mortem
    Examination”. The Supreme Court and the High Courts have held, while
    interpreting Article 21 of the constitution, that a dead body deserves
    respect and dignity. Opening up a dead body without reason amounts to insult
    and indignity towards the dead body. A Routine Post-Mortem Examination
    without reason or need as per law would therefore violate Article 21. Police
    or anybody else has no power to perform an autopsy on a dead body unless
    mandated by law. I state that there is nothing like a Routine Post-Mortem
    Examination.

    3—I disagree that the discretionary and decision making power as to whether
    to perform an autopsy or not should lie with the forensic experts. Such
    power lies and should continue to lie with judicial authorities. Forensic
    experts are duty bound to carry out the judicial orders.

    4—If there is a shortage of forensic medicine experts, the remedy lies not
    in not doing post mortems but in increasing the seats for postgraduation in
    forensic medicine in medical colleges. There is no question that such seats
    will remain unfilled if proper incentives are given. As an example, PG seats
    in forensic medicine can be filled on first come first serve basis before
    the regular counseling for PG seats starts. Where there is a will, there is
    a way.**

    * *

    -- M C Gupta

    ReplyDelete
  109. *What is wrong with doctors giving more time and attention to rich patients?
    *

    QUESTION (by MCG)—I think the age old teaching, that a doctor should give
    equal attention and time to both a rich patient and a poor patient with an
    equal and comparable risk to life, is no longer valid. I think that despite
    what the Code of Medical ethics might say, a prudent doctor would be
    justified in devoting time and attention to the patient proportionate not
    only to the risk to the life of the patient (which is the same in both
    cases), but, also, proportionate to the risk to the doctor himself. The risk
    to the doctor maybe two-fold: ONE, risk to the doctor’s life (as when
    dealing with an HIV positive patient) or the risk to the doctor otherwise,
    such as by way of litigation. If the outcome of the treatment is not
    favourable to the patient, the risk to the doctor that the patient might
    slap and win a multi-million dollar malpractice suit against him is higher
    if the patient is rich. That being so, what is against the proposition that
    a prudent doctor should pay more time and attention to a rich patient, as
    long as the doctor is not negligent towards the poor patient?

    ANSWER--????? (Sought by MCG).......................

    --
    (Ex)Prof. M C Gupta
    MD (Medicine), MPH, LL.M.,

    ReplyDelete
  110. *QUESTION—It appears that too many requests for autopsies are being sent by
    the police for post-mortem examination. This imposes a great work load upon
    forensic experts and they are not able to do their job well. Some of these
    autopsies don’t seem to be necessary. What is the remedy?*

    *ANSWER—*The remedy may be on the following lines:

    a—An expert group consisting of senior forensic experts, police officers
    and advocates should be appointed. Initiave for this may be taken by the All
    India Association of Forensic Medicine Specialists. The group should
    deliberate upon the issue and come out with a status report, analysis,
    international comparison and recommendations.

    b—If the group feels that it is desirable and feasible to reduce the number
    of requests for autopsies, the recommendations of the group should be
    followed up.

    -- M C Gupta

    MD (Medicine), LL.M.

    Ex-Professor

    Practicing advocate

    ReplyDelete
  111. *QUESTION—As per NABL guidelines (NABL-112), a person having an MSc degree
    and 5 years laboratory experience can act as authorized signatory for
    clinical pathological laboratory reports. These guidelines also say that
    all local rules, regulations and laws are applicable to the laboratory. The
    law in this regard, as pleaded by the MCI and as accepted as per High Court
    judgments, is that carrying out such tests and signing such reports amounts
    to practice of the specialty of pathology, which is permissible only when
    the person has a postgraduate qualification in pathology. Thus there is an
    inconsistency within the NABL guidelines. What can be done in this regard?*

    *ANSWER—*In the circumstances given by you, I suggest the following course:

    a—Write to the NABL about it to get their point of view.

    b—If their reply is not satisfactory, send them a legal notice drafted by an
    advocate, giving them 4 weeks to take necessary action.

    c—At the expiry of 4 weeks and in the absence of necessary action, start
    legal proceedings.

    [The exact nature of “necessary action” and the “legal proceedings”
    mentioned above has been not detailed above because these will depend upon
    several factors and would be best determined by the advocate concerned.]

    I think such legal action should have a successful outcome.

    -- M C Gupta

    MD (Medicine), LL.M.

    Ex-Professor

    ReplyDelete
  112. *QUESTION— Can non-medical biochemists and microbiologists legally set
    up independent
    diagnostic laboratories for patients?*

    **

    *ANSWER*— No. They cannot. The reasons are as follows:

    1-- There are the following main types of diagnostic tests—

    --Clinical pathological tests (hemogram, stool, urine, CSF examination etc.)

    --Histopathological tests

    --Clinical biochemistry tests (blood sugar, urea, protein etc.)

    --Clinical microbiological tests (urine culture and sensitivity etc.)

    2— At conceptual level, all the above tests are pathological tests because
    they are aimed at detection and diagnosis of the body pathology in a
    diseased patient. Carrying out these tests amounts to practice of medicine
    (the medical specialty of pathology). For this reason, these tests can be
    legally carried out only by persons having a qualification in pathology.
    This is the view taken by the MCI and agreed by the high Courts. It is a
    different matter that the techniques used for such detection may sometimes
    be classifiable as pathological, biochemical or microbiological. The common
    factor still remains the same—detection and diagnosis of body pathology.
    Hence the laboratories conducting these tests are often referred to by the
    generic name of pathology laboratories

    3—Even at a practical level, there are hardly any “pure” clinical
    biochemistry or clinical microbiology laboratories. The clinical
    biochemistry and clinical microbiological tests are conducted in the same
    laboratory known as a pathological laboratory. Such a laboratory can have
    different divisions for clinical pathology; histopathology; biochemistry and
    microbiology.

    M C Gupta

    ReplyDelete
  113. *QUESTION—I am a neuro-psychiatrist having my own private practice. I
    received a notice from one of my patients to disclose the details of her
    solitary consultation in May 2007 by post under the Right to Information
    Act. I did not respond. I have now received a notice from the Soochna Ayog
    to reveal the details to their office. CMO Dehradun has also been summoned.
    *

    *Does RTI apply to private practitioners?*

    * *

    *ANSWER—*

    1—Private practitioners are not covered under the RTI. The notice issued to
    you by The State Information Commission (the Soochna Ayog) has no
    jurisdiction to issue a notice to you. You can write to them accordingly.

    2—You should supply the information asked to the patient because you are
    bound to do so in terms of regulation 1.3.2 of the Indian Medical Council
    (Professional conduct, Etiquette and Ethics) Regulations, 2002, which reads
    as follows:

    “1.3.2. If any request is made for medical records either by the patients /
    authorised attendant or legal authorities involved, the same may be duly
    acknowledged and documents shall be issued within the period of 72 hours.”

    3--Please note that a medical practitioner is supposed to keep records for a
    period of 3 years in terms of Regulation 1.3.1, which reads: “Every
    physician shall maintain the medical records pertaining to his / her indoor
    patients for a period of 3 years from the date of commencement of the
    treatment in a standard proforma laid down by the Medical Council of India
    and attached as Appendix 3”.

    4--Retrieval of old records is easier if they are computerized in terms of
    Regulation 1.3.4, which reads as follows:

    “1.3.4 Efforts shall be made to computerize medical records for quick
    retrieval.”

    * *

    -- M C Gupta

    MD (Medicine), LL.M.

    Ex-Professor

    ReplyDelete
  114. *QUESTION—Is **a forensic expert competent to decide whether post-mortem is
    necessary or not?*

    * ANSWER—*

    a—A forensic expert does not necessarily have either the power or the
    competence to decide as to in which case he shall or shall not carry out a
    post-mortem examination.

    b—The forensic expert needs to understand that he is neither the
    complainant, nor the prosecutor, nor the investigator, nor the judge. He is
    merely an expert, usually in government service, who helps the investigating
    agency (police), acting under law, by: carrying out a medico-legal
    examination; adducing evidence; and, giving an expert medico-legal opinion
    at both the pre-trial and the trial stage. He is not a private expert like a
    medical specialist who is not bound to give expert opinion if he does not
    want. He is a government employee who is bound by service rules to perform
    the work given by the employer. Additionally, he, like any other citizen, is
    bound to help the legally empowered authorities when they ask him to do so.

    c—In the circumstances, it is clear that a forensic expert does not have
    the power to decide as to in which case he would perform autopsy and in
    which case he would not. He may be an expert, but he is, basically, like any
    other officer, a worker / employee. His job is to carry out the lawful
    orders given to whom in the course of duty. It is clear that he is employed
    by the employer for doing the job, inter alia, of performing an autopsy. Not
    doing such job would be dereliction of duty for which he would be doubly
    liable. On the one hand, he can be punished by the employer directly for
    non-performance of duties. On the other hand, he can be punished by the
    court through the employer or even directly for obstructing the course of
    investigation and justice.

    d—It is possible that a forensic expert may not even have the competence to
    decide whether a dead body needs to be autopsied or not. Let us take an
    example. Suppose the police finds along a drain the emaciated body of a
    beggar who died as unknown 2-3 days ago. The police want a post mortem. The
    forensic expert refuses to do so, saying there is nothing to suspect foul
    play. An old man identifies the body as that of his missing son. The body is
    disposed of. After six months, the old man’s son, who was missing, emerges
    hale and hearty. The body obviously belonged to another person who might
    have been a victim or perpetrator of crime. Had a post-mortem examination
    been carried out in this case, it is possible that some crime might have
    been detected. The refusal by the forensic expert to carry out an autopsy
    thus probably resulted in non-detection of crime.

    In view of the above, I think a forensic expert lacks power to decide
    whether he should carry out an autopsy. I even think that, at times, he may
    not even be competent to decide.

    -- M C Gupta

    MD (Medicine), LL.M.

    ReplyDelete
  115. QUESTION—Is there a relation between the time spent by the doctor with the
    patients and the cases filed against doctors by the patients?*

    *ANSWER--*

    1—It is well known that patients take the doctor to the court when there is
    actual or perceived negligence. Negligence may be perceived, though not
    actually present, when the doctors fail to discuss various aspects of the
    disease and its treatment with the patient or the relatives. I often find in
    my own law practice that the consent is not properly taken and is not often
    an informed consent. The doctors tell me that either they are too busy to
    talk to the patient or they are afraid that if they tell the patients about
    the risk of treatment, they would discontinue treatment and would go to
    another doctor.

    2—A research study from the USA reported that when patients were
    dissatisfied with the doctor, there was statistically significant higher
    chance of their making “unsolicited complaints” against” the doctors. One
    can safely assume that those who sent “unsolicited complaints” against” the
    doctors were the ones more likely to sue them.

    [The relation of patient satisfaction with complaints against physicians and
    malpractice lawsuits--*The American Journal of Medicine, Volume 118, Issue
    10, October 2005, Pages 1126-1133]*
    **

    3—It would be safe to conclude that doctors should try to spend sufficient
    time with the patients and relatives to answer whatever queries they may
    have and to reassure them appropriately.

    -- M C Gupta

    MD (Medicine), LL.M.

    Ex-Professor

    ReplyDelete
  116. QUESTION—What is the status of the medical degree awarded by a university /
    medical college when the recognition granted to the medical college has been
    withdrawn?*

    * *

    *ANSWER— *This question has to be answered keeping in mind the following
    sections of the Indian Medical Council Act, 1956, along with related court
    judgments: Section 10A; Section 10B; Section 11; and, Section 19.

    A perusal of the above sections and related judgments gives the following
    picture:

    1-- If a student joins a medical college which has been established without
    the permission of the central government, the degree awarded by such college
    is likely to be an un-recognised degree and the student joins such college
    at his own risk.

    2—If a student is studying in a recognised medical college and the MCI
    withdraws recognition while he is still a student, the legitimate interests
    of the student can’t be allowed to suffer and the student will be within his
    right to demand from the authorities that he should be transferred to
    another recognised college within the state or in some other state. If such
    request is not granted by the authorities concerned, the student should file
    a writ petition in the High Court and such petition is highly likely to
    succeed.

    3-If the name of the university is included in the First Schedule of the MCI
    Act during the period of studentship, the MBBS degree awarded to the student
    will be a valid degree.

    * *

    -- M C Gupta

    MD (Medicine), LL.M.

    ReplyDelete
  117. *QUESTION— I am a registered medical practitioner in terms of the MCI Act.
    After MBBS, I obtained the degree of **MD in Microbiology (University of
    Bombay) after undergoing a course of study at INHS Asvini (Mumbai) which is
    the referral institute of the Indian Navy. I applied to the Maharashtra
    Medical Council for registration of the MD degree against my name in the
    state medical register but they refused to do so saying that this degree is
    not recognised by the MCI. For last two years I have **been employed as
    consultant Microbiologist in a corporate hospital in Hyderabad for two years
    and they have no problem with my degree. Do I have a valid legal status as a
    microbiologist?***

    *ANSWER—*

    * *

    A—According to my information (as per my copy of the MCI Act, published in
    2006 by Universal Law Publishing co.), the degree of* *MD in Microbiology
    (University of Bombay) is included in the First Schedule of the Indian
    Medical Council Act, 1956. I need to have a look at the refusal letter from
    the Maharashtra Medical Council.

    B— You need to act as follows:

    1--You should demand the following information from the Maharashtra Medical
    Council under the RTI Act:

    “a--whether the degree of MD in Microbiology awarded by the University of
    Bombay is a degree recognised by the MCI?

    b--whether it has been decided that the degree of MD in Microbiology awarded
    in the year……… by the University of Bombay awarded after after undergoing a
    course of study at INHS Asvini (Mumbai) is not recognised by the MCI? If so,
    please inform about the date, authority and reasons for such decision.”

    C—If the reply received is not legally satisfactory, file a writ petition in
    the Bombay High Court against the Maharashtra Medical Council for refusal to
    add the MD degree against your name.

    D—Meanwhile, don’t lose your peace of mind because:

    a—You are already in job and the employer has no problem;

    b—If you want to quit job and start private practice as a microbiologist,
    you can do so safely from a legal point of view.

    -- M C Gupta

    ReplyDelete
  118. *QUESTION--If** the technician collects a particular sample and also collect
    fees for it from the patient but forgets to run the test, what are the steps
    to be taken by the pathologist when the patient / relative comes to collect
    the report?*

    * *

    *ANSWER—* The question itself is not properly worded. You seem to be putting
    the blame upon the technician. The blame lies squarely upon you as the
    pathologist. The question should have been worded as follows:

    “If I / my laboratory collect a sample from a patient against payment of
    fees in advance but forget to run the test, what should I tell the patient”?

    I will proceed to answer this modified question.

    1—You should apologise to the patient and request him to give another sample
    and, if the patient so desires, offer to get the sample collected from his
    home and carry out the test free of any additional cost. You may also offer
    to carry out any other test free if the patient needs the test.

    2—Additionally, you should exercise better supervisory control over your
    staff and provide them training in the areas where they lack. You should try
    to find why the lapse occurred and then try to apply remedial measures.

    -- M C Gupta

    MD (Medicine), LL.M.

    Ex-Professor

    ReplyDelete
  119. *QUESTION—**Can the post mortem report (PMR) be obtained by filing an
    application under the RTI Act?*

    * *

    *ANSWER—*No. Medical records of a patient in the custody of the hospital are
    confidential documents which the hospital has no liberty to divulge to
    anybody except to the patient or to anybody authorised by the patient or to
    anybody legally representing the patient or to a lawful authority. This
    confidentiality continues even after the death of the patient. Medical
    records in hospitals are not public documents open to 1.2 billion people of
    India through the mechanism of RTI. In any case, RTI is not applicable to
    private hospitals.

    -- M C Gupta

    MD (Medicine), LL.M.

    Ex-Professor

    ReplyDelete
  120. *QUESTION--Can a person practice law and medicine at the same time?
    *
    *ANSWER--* No. Supreme Court ruled against it in (Dr.) Haniraj L. Chulani
    Versus Bar Council of Maharashtra and Goa, SC, decided on 8.4.1996.

    -- M C Gupta

    MD (Medicine), LL.M.

    ReplyDelete
  121. *Who can ask for and receive medical records? *

    *QUESTION—In reference to the* *requirement that a copy of the medical
    records is to be supplied **within 72 hours of such request, please clarify:
    *

    *A--On whose request the records can be given?*

    *B—Can the hospital asks for ID proof of the person submitting the request /
    taking delivery of the record?*

    * *

    *ANSWER—*

    The answer to your questions is contained in regulation 1.3.2 of the Indian
    Medical Council (Professional conduct, Etiquette and Ethics) Regulations,
    2002, reproduced below:

    “1.3.2. If any request is made for medical records either by the patients /
    authorised attendant or legal authorities involved, the same may be duly
    acknowledged and documents shall be issued within the period of 72 hours.”

    Specific answers are as follows—

    A—The request has to come from the “patients / authorised attendant or legal
    authorities involved”.

    B—If delivery is given by hand, the hospital would be within its rights to
    ask for ID proof of the person taking delivery of the record? If delivery is
    given through registered letter or courier, it is the job of the postal /
    courier authorities to check identity before delivery.**

    * *

    -- M C Gupta

    MD (Medicine), LL.M.

    Ex-Professor

    ReplyDelete
  122. *QUESTION-- How to obtain signature / left hand thumb impression of a
    patient in the ICU on a bank cheque for the purpose of withdrawing money
    for treatment, if the patient is incapacitated from doing so (for example,
    if he is unconscious or has an amputated hand).***

    * *

    * *

    *ANSWER—*The answer is simple—it cannot be done* *If the patient is
    incapacitated. The purpose of putting the signatures / thumb impression upon
    the cheque does not matter. Withdrawal of the money from the bank is a
    matter between the bank and the account holder. A doctor should not get
    involved, even though the money is meant for payment of hospital bills. It
    is always advisable to avoid a manifest or possible illegality.

    -- M C Gupta

    MD (Medicine), LL.M.

    ReplyDelete
  123. QUESTION—If somebody wants a copy of post mortem report (PMR), the hospital
    insists upon:*

    *1--A notarial affidavit stating the relationship with deceased and the
    purpose of getting PMR. *

    *2. Deposit Rs. 50/- per copy.*

    *3. An NOC from investigating officer/Police clearly stating that issuing
    the PMR will not hinder the investigations.*

    * *

    *Is the hospital justified in asking for these?*

    * *

    *ANSWER—*Yes. The hospital is justified.

    1—The notarized affidavit is meant to make sure that the hospital cannot be
    sued later for divulging medical records to an unauthorised person. A person
    who submits a false affidavit can be sued for perjury.

    2—Rs. 50/- per copy of the PMR is a reasonable charge. If the patient is too
    poor to pay the fees, I am sure the hospital would have the discretion to
    waive it.

    3—NOC is justified because when the police, as prosecution, has filed a case
    in the court, the PMR is likely to be valuable evidence in the hands of the
    prosecution and nobody, including the hospital, has a right to play with
    prosecution evidence and thereby interfere in the dispensation of justice.

    -- M C Gupta

    MD (Medicine), LL.M.

    Ex-Professor

    Practicing advocate

    ReplyDelete
  124. *QUESTION—Sometimes the relatives of an unconscious patient in a hospital
    request the doctor to attest the left thumb impression of the patient.
    Should the doctor agree to such request? *

    * *

    *ANSWER*— In the usual situations, the doctor should not do so.

    The left thumb impression is usually meant to signify the person’s agreement
    to a contract or undertaking. This would be an impossibility if the person
    is unconscious or not of sound mind.

    Attestation by another means that the person attesting has seen the
    concerned person putting, voluntarily, his signature / thumb impression upon
    the document. This is an impossibility if the person is unconscious.

    -- M C Gupta

    MD (Medicine), LL.M.

    Ex-Professor

    Practicing advocate

    ReplyDelete
  125. *Ref: *A standing parliamentary committee has recommended that, after
    graduation, *MBBS students should serve in own institute first.*


    QUESTIONS THAT DOCTORS MUST ASK THE AUTHORITIES THAT BE:

    1—Which law(s) are doctors breaking by going abroad?

    2—What is the rationale behind including the cost of “services of
    non-teaching personnel and furniture” towards the cost of medical education
    of an individual student?

    3—What is the cost of training an IMM graduate, compared to an AIIMS
    graduate?

    4—Why not bring out a legislation to make the IMM graduates work
    compulsorily after graduation in their own institution / government service
    before they are allowed to get campus placement salaries of Rs. 13 lakh a
    month?

    5—Will the proposed legislation ensure that If doctors are bound to serve
    their institution after graduation, there is no exploitation and they have
    proper designation, salary, terms of service and the service conditions
    that they would be entitled to have as a government servant?

    6—By what logic and legal principle can a full fledged, licensed doctor be
    compelled to work as a servant against his will?

    7—If the cost incurred on medical education so pinches the government, why
    does it not increase the fees so as to recover from the students whatever
    amount it wants, with an offer of fee waiver to those who sign a bond to
    serve the government, whether in the teaching institution or elsewhere,
    including rural areas?

    M C Gupta

    30 April 2010

    --

    ReplyDelete
  126. QUESTION--Can a non-MBBS person be appointed as medical superintendent or
    medical director? *

    * *

    *ANSWER—*

    * *

    1--The answer depends upon who is appointing and what are the rules of
    appointment.

    2—If it is a government department with clear eligibility requirements, it
    is unlikely that a non-MBBS person may be appointed as medical
    superintendent or medical director, except in an Ayurvedic, Homeopathic or
    Unani medical hospital.

    3—If it is a private organisation, the guide-lines as applicable will be
    followed and may even be bent. There can’t be a hard and fast rule.

    -- M C Gupta

    MD (Medicine), LL.M.

    Ex-Professor

    Practicing advocate

    mcgupta44@gmail.com

    ReplyDelete
  127. QUESTION—**Can the post mortem report (PMR) be obtained by filing an
    application under the RTI Act?*

    * *

    *ANSWER—*No. Medical records of a patient in the custody of the hospital are
    confidential documents which the hospital has no liberty to divulge to
    anybody except to the patient or to anybody authorised by the patient or to
    anybody legally representing the patient or to a lawful authority. This
    confidentiality continues even after the death of the patient. Medical
    records in hospitals are not public documents open to 1.2 billion people of
    India through the mechanism of RTI. In any case, RTI is not applicable to
    private hospitals.

    -- M C Gupta

    MD (Medicine), LL.M.

    Ex-Professor

    Practicing advocate

    ReplyDelete
  128. *QUESTION—Can a simple MBBS get admission to a PhD course? Is it not
    irrational? PhD is to be awarded after a person has acquired a post-graduate
    degree.*

    * *

    * *

    *ANSWER—*

    A--It is not irrational. You should look at it this way. A person is
    considered fit for admission to PhD course after studying for 5 years (three
    years for BSc, 2 for MSc.) after leaving school. An MBBS has put in more
    years than that before he gets his MBBS degree.

    B--The above rationale explains the following:

    1--An MBBS can get direct admission to PhD in many subjects in many reputed
    universities / institutions, including AIIMS.

    2--An MD is in many ways regarded as equivalent to PhD by the government /
    UGC in the sense that while PhD is a requirement for appointment to some
    teaching posts as per UGC rules, it is only MD without PhD (or, PhD without
    MD) in case of medical persons.

    3--An MBBS can get direct admission to some DM / MCh courses in reputed
    universities / institutions, including AIIMS / NIMHANS etc.

    C--The above is neither a largesse to medical personnel, nor without reason.
    It takes a minimum of 7-8 years post 10+2 to get BSc, MSc, and PhD. It takes
    minimum 8 and a half years to get MD. It takes minimum 8 years to get MBBS
    and PhD.

    * *

    -- M C Gupta

    MD (Medicine), LL.M.

    Ex-Professor

    Practicing advocate

    ReplyDelete
  129. *QUESTION—** **A fresh MD can get appointed as assistant professor and, with
    4 years’ experience as assistant professor, he can get promoted to
    associate professor. I have 3 years’ experience as senior resident after MD
    and then I became assistant professor. Now I have to spend 4 more years as
    assistant professor before I can become an associate professor. This is
    unjust because my 3 years of senior residency seem to have gone waste. This
    is the position as per MCI rules. On the other hand, the AIIMS, PGI, UPSC,
    etc. give due weightage to the 3 year post-MD senior residency. *

    *How can I fight it out with the MCI?*

    * *

    * *

    *ANSWER—*

    **

    Let us get it legally straightened. You are in service. You think you are
    being unjustly denied promotion. You have to fight the employer, not the
    MCI.

    Your fight should be on the following lines:

    1—FIRST, you should submit a proper representation to the employer, stating
    clearly what is the injustice done to you and what just relief you want the
    employer to grant. It is highly recommended that this should be drafted by a
    lawyer. The representation should contain a clear request that the decision
    of the employer may be communicated to you within 6 weeks.

    2—THEN, If the employer grants the relief within the notice period, well and
    good. Otherwise, initiate legal action. This may be in the form of a writ
    petition to the High Court. The MCI may be made a respondent party depending
    upon the circumstances.

    -- M C Gupta

    MD (Medicine), LL.M.

    Ex-Professor

    Practicing advocate

    mcgupta44@gmail.com

    ReplyDelete
  130. *QUESTION— According to a Supreme Court ruling in 2008 (Dr. V. Balaji Vs
    Union of India), conducting any form of post-graduate medical courses in
    India, including those by distance learning, without the recognition of MCI
    is ill-legal and hence strictly prohibited. However, institutes like
    Medvarsity-Apollo have been conducting many post-graduate certificate
    courses for last 10 years. Similarly many other hospitals and medical
    colleges in India openly conduct such courses (eg. Diabetology course). Can
    these institutes be sued in the court of law? Can the court ban these
    courses? *

    * *

    *ANSWER—*

    1--The judgment you have quoted is by the Madras High Court. It is titled “Dr.
    V. Balaji, 30/M vs. Union of India” and was pronounced on 25-11-08. The
    petitioners challenged the government decision, through an executive order
    signed by the Governor, for starting 6 months certificate course in
    diabetology in all state medical colleges for a fee of Rs. 5000/-.

    *2—*The main ground was that the government order violated the provisions of
    Section 10A(1)(b) of the Medical Council Act, 1956, which reads:**

    “b.no medical college shall:-

    i.open a new or higher course of study or training (including a postgraduate
    course of study or training) which would enable a student of such course or
    training to qualify himself for the award of any recognised medical
    qualification.”

    3—The Medvarsity-Apollo is not a medical college, hence the above provision
    of the MCI Act is not applicable to it.

    4—Another ground of challenge by the petitioners was that the government
    order was in contravention of Section 3 of The Indian Medical Degrees Act,
    1916, which reads: “3.Right to confer degrees, etc. The right of conferring,
    granting or issuing in the States degrees, diplomas, licences, certificates
    or other documents stating or implying that the holder, grantee or recipient
    thereof is qualified to practice western medical science, shall be
    exercisable only by the authorities specified in the Schedule, and buy such
    other authority as the State Government may, by notification in the Official
    Gazette, and subject to such conditions and restrictions as it thinks fit to
    impose, authorize in this behalf.”

    5—If The Medvarsity-Apollo has not taken permission from the authorities
    specified in the The Indian Medical Degrees Act, 1916, it would be liable in
    law.

    Similar conditions would apply to institutions other than the Medvarsity-Apollo
    mentioned by you. However, courts don’t act on their own motion. Someone has
    to challenge the illegality by filing a petition before the court

    -- M C Gupta

    MD (Medicine), LL.M.

    ReplyDelete
  131. QUESTION—An MBBS doctor has been having an ultrasound clinic since 1994.
    The clinic was registered under the PNDT Act in 2001 and re-registered in
    2006 and continues to be registered as of now in 2010. Recently the PNDT
    authorities have sent **a notice asking whether the doctor has a
    qualification in sonography duly recognised by the government / MCI,
    threatening to close the clinic if reply is not received within 10 days.
    What should be done?*

    * *

    * *

    *ANSWER—*

    * *

    *1--*The requirements for the purpose of PNDT Act are laid down* *Rule 3 (3)
    (1) (b) of the Pre-Natal Diagnostic Techniques (Regulation And Prevention
    Of Misuse) Rules, 1996, as amended in 2003, which can be viewed at

    http://www.mohfw.nic.in/The%20PNDT%20(AMENDMENT%20RULES),%202003.htm

    The requirements are that the person should be --

    "(b) a Sonologist, Imaging Specialist, Radiologist or Registered Medical
    Practitioner having Post Graduate degree or diploma or six months training
    or one year experience in sonography or image scanning,"

    NOTE—In terms of Section 2 (m) of the PC & PNDT Act, 1994, a Registered
    Medical Practitioner means a practitioner registered with MCI or State
    Medical Council as provided in the Indian Medical Council Act, 1956.

    * *

    2—The doctor concerned seems to fulfill the required qualifications.

    3—What he should do is this:

    a- Consult a lawyer and let him draft a reply to the notice. Let the
    doctor submit it to the authorities. A properly drafted reply should be
    sufficient to forestall any further untoward action.

    b- If the authorities still close the clinic, immediately take legal
    action.

    c- Meanwhile, he should be prepared for an inspection any day. He should
    prepare for the same, abiding by all the requirements of PNDT Act / Rules.

    -- M C Gupta

    ReplyDelete
  132. *QUESTION—The Supreme Court has held that it is illegal to perform
    polygraph, narco-analysis and brain mapping test without consent of the
    accused. What are your comments as a medico-legal expert?*

    * *

    *ANSWER--*

    1-- On 5-5-2010, a Supreme Court bench comprising Chief Justice K G
    Balakrishnan and comprising Justices R V Raveendran and Dalveer Bhandari
    declared as "illegal" the use, without consent, of narco-analysis,
    brain-mapping and polygraph tests.

    2-- Legally, the judgment is sound. These tests were held as violative of
    the fundamental rights under articles 20 and 21 of the constitution.

    3—Even otherwise, the scientific validity of the tests was always under
    question.

    3—The judicial acceptability of scientific tests as evidence has followed
    two approaches in USA—the Frye test and the Daubert test.

    The Frye inquiry allows the judiciary, as regards novel scientific evidence
    , to defer to scientific expertise precisely as to whether or not it has
    gained "general acceptance" in the relevant field. On the other hand, the *
    Daubert* ruling substitutes a reliability test for a relevancy test.

    4--Many police officers agree that these methods tend to encourage the
    investigative agencies to become lax in pursuing the investigation on
    proper, standard lines.

    5-- As emphasized in

    *http://www.apsu.edu/oconnort/3210/3210lect01a.htm*

    “The misuse of scientific evidence is a serious problem. Even the FBI
    laboratory is under suspicion. In West Virginia, a serologist falsified test
    results in hundreds of cases over a ten-year period, sentencing hundreds of
    defendants to lengthy prison terms. In Texas, a pathologist faked autopsy
    results, resulting in as many as 20 death penalty verdicts. A police chemist
    elsewhere falsified reports and sent hundreds of innocent people away to
    jail on rape charges. Most misuse of scientific evidence is pro-prosecution.


    6—The medical aspects are as follows:

    a—Narco-analysis involves intravenous injection of thiopental for no medical
    indication in a normal person without his consent and almost amounts to
    torture. A doctor giving such injection acts against his primary duty to
    relieve sickness and to promote health.

    b—Giving intravenous pentothal is likely to result in unintended medical
    complications.

    b—In addition, any intravenous injection, in general, can have potentially
    harmful complications.

    -- M C Gupta

    MD (Medicine), LL.M.

    Ex-Professor

    Practicing advocate

    mcgupta44@gmail.com

    ReplyDelete
  133. *QUESTION—I am an MBBS in state government service. I was sent for 15 days
    training in ultrasonography by orders of the then civil surgeon in 2002
    under a radiologist in the district civil hospital. For last 8 years, I have
    been doing ultrasonography in the district civil hospital as well as in
    peripheral overnment hospitals under orders of the civil surgeon. Am I
    doing something illegal? What defence will I have if my qualifications are
    questioned?*

    * *

    *ANSWER—*

    The law regarding ultrasonography is as follows:

    A—Nobody can claim to be a specialist without having a special qualification
    in that specialty. Regulation 7.20 of the Indian Medical Council
    (Professional conduct, Etiquette and Ethics) Regulations, 2002, reads as
    follows--

    *“7.20* A Physician shall not claim to be specialist unless he has a special
    qualification in that branch.”

    B—The above rule has been diluted under the PNDT Act for the specific
    purpose of carrying out ultrasonography of the genital tract of a pregnant
    woman and the relaxed criteria are laid down* in *Rule 3 (3) (1) (b) of the
    Pre-Natal Diagnostic Techniques (Regulation And Prevention Of Misuse)
    Rules, 1996, as amended in 2003, which stipulates that the following persons
    are eligible:

    "(b) a Sonologist, Imaging Specialist, Radiologist or Registered Medical
    Practitioner having Post Graduate degree or diploma or six months training
    or one year experience in sonography or image scanning,"

    C—It is clear that you would be eligible for registration if you apply for
    registration as an ultrasonologist under the PNDT Act. Please note that even
    if you are so registered, such registration will not render you qualified or
    capable of carrying out ultrasonography in general.

    D—As long as you are in government service, you may have a partial defence
    if you have written orders from the civil surgeon to perform ultrasonography
    in a government hospital on hospital patients using government machine. Even
    in this situation, if some serious mishap occurs and a case is filed against
    you, you cannot be fully absolved of responsibility because you are not
    supposed to be unaware of law. No government servant is supposed to carry
    out illegal orders of the superior.

    E—In the circumstances, you should write, under acknowledgement, to the
    civil surgeon apprising him of your legal incompetence and requesting him to
    depute you on study leave for undergoing a regular course of education /
    training that may make you legally competent for performing ultrasonography.

    F—If some mishap occurs and somebody sues the civil surgeon / health
    department for negligence, alleging that the negligence and injury occurred
    because the test was done by an unqualified person, he is likely to score a
    point in his favour.

    G—If you leave government service, you will have no defence. You will find
    that other doctors, especially other ultrasonologists, will get cases
    instituted against you for practicing a specialty without being a
    specialist.

    -- M C Gupta

    ReplyDelete
  134. *QUESTION—Is the degree of MHA awarded by the AIIMS a medical or a
    non-medical degree?*

    *ANSWER—* In terms of Schedule 1 of the Indian Medical Council Act, 1956,
    the degree of Master of Hospital Administration awarded by the AIIMS
    is a medical
    degree if it is awarded to a person holding a recognised medical
    qualification under the Act. This would mean that MHA will be a non-medical
    degree if awarded to a BAMS / BHMS / BUMS / BDS / MDS etc. or to anybody
    else.

    -- M C Gupta

    ReplyDelete
  135. Can a PG student be considered a medical teacher during his/her study
    tenure ?

    >> Yes, if he is teaching MBBS students during his period of
    post-graduation.

    M C Gupta

    ReplyDelete
  136. *QUESTION—An MBBS doctor underwent three weeks training in Sir Ganga Ram
    Hospital, Delhi, for 3 weeks in 1988. He has been performing ultrasonography
    since then. In 2001, he got registered with the civil surgeon. Is he legally
    competent to perform sonography?*

    *ANSWER—*

    * *

    The answer is a clear no. There might be mitigating circumstances if he is
    practicing in a remote area where there is no qualified ultrasonologist.
    Regulation 7.20 of the MCI code of medical ethics squarely applies to him.
    However, if he is registered under the PNDT Act, he is legally competent to
    perform genital tract ultrasonography in pregnant women limited to the
    course of pregnancy. A District Forum in Punjab recently held as negligent a
    doctor whose competence was challenged as regards treatment of a woman
    suspected to have / having carcinoma cervix, on the reasoning that mere
    registration under the PNDT Act by virtue of fulfilling the requirements
    laid down* in *Rule 3 (3) (1) (b) of the Pre-Natal Diagnostic Techniques
    (Regulation And Prevention Of Misuse) Rules, 1996, as amended in 2003, does
    not convert an MBBS doctor into an ultrasound specialist.

    The Regulation 7.20 and Rule 3 (3) (1) (b) are reproduced below:

    *Requirements as per* *Regulation 7.20* of the Indian Medical Council
    (Professional conduct, Etiquette and Ethics) Regulations, 2002: --

    *“7.20* A Physician shall not claim to be specialist unless he has a special
    qualification in that branch.”

    *Requirements as per Rule 3 (3) (1) (b)* of the Pre-Natal Diagnostic
    Techniques (Regulation And Prevention Of Misuse) Rules, 1996, as amended in
    2003:

    "(b) a Sonologist, Imaging Specialist, Radiologist or Registered Medical
    Practitioner having Post Graduate degree or diploma or six months training
    or one year experience in sonography or image scanning,"

    -- M C Gupta

    MD (Medicine), LL.M.

    Ex-Professor

    Practicing advocate

    ReplyDelete
  137. *QUESTION—I am an MBBS. Will six months training at PGI Chandigarh enable me
    to:*

    *a—Get registered under the PNDT Act for sonography;*

    *b—Perform sonography on various patients in general;*

    *c-- Call myself a sonologist?*

    *ANSWER—*

    * *

    a—Yes. You will be eligible in term of* ** Rule 3 (3) (1) (b)* of the
    Pre-Natal Diagnostic Techniques (Regulation And Prevention Of Misuse) Rules,
    1996, as amended in 2003, which lays down the following requirements--

    "(b) a Sonologist, Imaging Specialist, Radiologist or Registered Medical
    Practitioner having Post Graduate degree or diploma or six months training
    or one year experience in sonography or image scanning,"

    b—No. The eligibility under the PNDT act for the specific purpose of
    carrying out ultrasound on pregnant women in relation to their pregnancy
    does not mean automatic eligibility in terms of regulation 7.20* *of the
    Indian Medical Council (Professional conduct, Etiquette and Ethics)
    Regulations, 2002, reproduced below:

    *“7.20* A Physician shall not claim to be specialist unless he has a special
    qualification in that branch.”

    * *

    Six months training does not mean acquiring a special qualification*.*

    * *

    *c—*You may loosely call yourself a sonologist, but you should not hold out
    as a specialist in ultrasonography in the usual sense of the term in any of
    your documents / letterhead / visiting card etc. However, you can certainly
    mention there the fact that you are a registered sonologist in terms of the
    PNDT Act.

    * *

    -- M C Gupta

    MD (Medicine), LL.M.

    ReplyDelete
  138. *QUESTION—Is the registration of an ultrasound clinic under the PNDT Act
    valid for pregnancy related cases only? Is it so mentioned in the Act?*

    * *

    *ANSWER—*

    **

    A—The purpose of the act is always determined from the preamble to the act,
    which is as follows in case of the PNDT Act:

    “*An Act to provide for the regulation of the use of pre-natal diagnostic
    techniques for the purpose of detecting genetic or metabolic disorders or
    chromosomal abnormalities or certain congenital malformations or sex linked
    disorders and for the prevention of the misuse of such techniques for the
    purpose of pre-natal sex determination leading to female foeticide; and, for
    matters connected therewith or incidental thereto.”*

    * *

    *It is clear that the PNDT act and its various provisions, including that
    for registration of an ultrasound clinic, are meant only in relation to
    pregnancy related cases.*

    * *

    B—Rule 3(1) of the PNDT Rules reads as follows:

    (3) (1) Any person having adequate space and being or employing

    (a) Gynaecologist having experience of performing at least 20 procedures
    in chorionic villi aspirations per vagina or per abdomen, chorionic villi
    biopsy, amniocentesis, cordocentesis foetoscopy, foetal skin or organ biopsy
    or foetal blood sampling etc. under supervision of an experienced
    gynaecologist in these fields, or

    (b) a Sonologist, Imaging Specialist, Radiologist or Registered Medical
    Practitioner having Post Graduate degree or diploma or six months training
    or one year experience in sonography or image scanning, or.

    (c) A medical geneticist.

    may set up a genetic clinic/ultrasound clinic/imaging centre.”

    It is clear that the qualifications etc. given in sub-clause (b) above are
    only for the purpose of setting up a genetic clinic. An ultrasound centre
    registered under the PNDT Act is a genetic clinic as defined in section 2(d)
    of the PNDT Act. As per this section, a genetic clinic includes, inter alia,
    a place used for conducting prenatal diagnostic procedures. Prenatal
    diagnostic procedures are defined in section 2(i) and include, inter alia,
    ultrasonography and prenatal diagnostic tests for selection of sex before or
    after conception. Prenatal diagnostic test is defined in section 2(k) and
    includes, inter alia, ultrasonography.

    C—It is abundantly clear from the above that the registration of an
    ultrasound clinic under the PNDT Act is valid for pregnancy related cases
    only. There is no way that a general ultrasound clinic can be registered
    under the PNDT Act.

    -- M C Gupta

    MD (Medicine), LL.M.

    Ex-Professor

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  139. *QUESTION—**The Institute of ultrasound Training, 7/1 Prem Nagar, Janakpuri,
    New Delhi, awards diploma certificates of having successfully completed 6-12
    months sonology training under the banner of IGNOU and Global Open
    University, Nagaland. Is a doctor legally competent to perform
    ultrasonography on various patients on the basis of such a diploma
    certificate?
    *

    **

    *ANSWER—*No.

    FIRSTLY, such a course is not listed on the websites of these two
    universities.

    SECONDLY, such a certificate is unlikely to fulfill the requirements of
    Regulation 7.20, gicen below—

    *Requirements as per* *Regulation 7.20* of the Indian Medical Council
    (Professional conduct, Etiquette and Ethics) Regulations, 2002: --

    *“7.20* A Physician shall not claim to be specialist unless he has a special
    qualification in that branch.”

    * *

    A special qualification means a qualification in the specialty concerned
    which is recognised by the MCI. The MCI does not recognise qualifications
    that are obtained through distance learning or after undergoing a course for
    less than 2 years.

    THIRDLY, the institute concerned does not appear to have strong credentials.

    -- M C Gupta

    MD (Medicine), LL.M.

    ReplyDelete
  140. *QUESTION--Our hospital has started an International Patient Services
    recently. We keep the passport copies of the patient in the Medical Record
    file and intimate the police regarding the International Patients. Please
    let us know:

    1)What are the special medico-legal aspects in these patients?
    2)What are the special documentation aspects in these patients?
    3) When and how to intimate the police?*

    *
    ANSWER--*

    1—Medico-legally, the following aspects may be important:

    a—If some mishap happens with regard to a foreign patient, compensation
    payable may be quite heavy since the income level and average life
    expectancy in foreign countries may be much higher than in India. Hence the
    doctors, staff and the hospital itself should buy adequate professional
    indemnity insurance.

    b—Past medical history should be probed in detail, including history of drug
    allergy and the history of taking drugs, including psychotropic drugs. The
    onus to provide these lies upon the patient. If the patient asks electronic
    facilities to get records from their previous doctor / hospital, these
    should be provided. Past record helps the physician. If the patient has been
    asked to get some record and he is unable to provide the same, this fact
    should be clearly recorded.

    c—The hospital case sheet should be properly maintained and should be
    preferably computerized.

    d—Proper informed consent must be ensured and documented.

    2—Special documentary aspects are as follows:

    a—Names and contact details of at least 2 local acquaintances of the patient
    must be recorded.

    b--If circumstances so dictate, an acquaintance may be asked to stand surety
    for hospital bills etc. and to act as local care taker in case of emergency.

    3—Police should be informed whenever there is a suspicion of foul play by or
    against or in relation to the foreign patient. The information should be in
    writing (along with telephone if necessary.)

    -- M C Gupta

    MD (Medicine), LL.M.

    ReplyDelete
  141. *QUESTION-- How much % variation in numerical values of test results from
    different laboratories is permissible legally?*

    * *

    *ANSWER—*Law does not fix such numerical percentage limits. Law operates on
    the basis of common sense or expert opinion, when needed. The basic rule is
    that courts do not sit on judgment over technical, medical, scientific or
    professional matters of a complex nature. In such situations, they rely upon
    expert opinion. When a dispute regarding differential laboratory test
    values comes to the court, each party to the suit pleads its own case and
    the court weighs the pros and cons of their pleadings and decides if the
    matter is simple enough to be decided. When the matter is complex, the court
    may, on its own motion or upon request of either of the parties, refer the
    case to an expert for opinion. In medical matters, such opinion has now been
    made mandatory by virtue of the Supreme Court judgments in Jacob Mathew case
    and de-Souza case.

    -- M C Gupta

    MD (Medicine), LL.M.

    Ex-Professor

    Practicing advocate

    ReplyDelete
  142. *QUESTION--** **I wonder what is the work domain of an MBBS doctor. He
    cannot treat a patient because he is not a physician. He cannot operate
    because he is not a surgeon. He cannot deliver because he is not a gynae-
    obstetrician. Similarly, he is not a dermatologist, ophthalmologist,
    psychiatrist, otorhinolaryngologist etc. And, still medical colleges churn
    out more MBBS than specialists.
    Does MCI specify what all can an MBBS do without getting into legal trouble?
    *

    * *

    *ANSWER--*

    a-- The work domain of an MBBS doctor is to alleviate human suffering and
    save life by applying what he learns through the long MBBS course. For this
    purpose, he can use a large number of diagnostic and therapeutic modalities
    as long as he takes care that he does not cross two limits: He should not go
    beyond his own system of medicine and he should not perform acts for which
    he has not been trained and which belong to specific specialties. However,
    if it is a matter of saving life in an emergency situation, he would be
    justified in cautiously crossing these limits also if there is sufficient
    reason.

    In general, an MBBS doctor should practice family medicine.

    b—An MBBS doctor can certainly practice as a general physician and, in
    addition, can do, for example, the following when warranted and when he or
    she has necessary skills and the facilities: simple surgeries; delivery;
    dermatological treatment; minor eye surgery; treatment of mental disorders;
    minor ENT procedures etc. A lot will depend upon the local situation. If the
    doctor is located in a remote area where there are no specialists available,
    the doctor will have, of necessity, to be more active when critical
    situations arise.

    c-- MCI has already specified what doctors should or should not do so as not
    to be caught on the wrong side of law. . Please read the Code of Medical
    Ethics Regulations, 2002.

    * *

    -- M C Gupta

    MD (Medicine), LL.M.

    ReplyDelete
  143. SITUATION ONE—When a laboratory is owned and run by a technician and reports
    are signed by him—This is outright illegal because it violates the Indian
    medical Council Act, 1956. The following legal actions can be taken:

    a—Complaint to medical council for quackery;

    b-- Complaint to consumer court for deficiency and negligence in service,
    invoking quackery;

    c-- Complaint to police for quackery.

    d—Complaint under Clinical Establishment Act, if applicable in the state.

    SITUATION TWO—When a laboratory is owned and run by an MSC in biochemistry
    or microbiology and reports are signed by him—Essentially, the situation is
    the same as in situation one above.

    SITUATION THREE—When a laboratory is owned and run by a technician but
    reports are signed for the sake of formality by a pathologist who does not
    exercise any control or supervision in the laboratory—This is sham signing
    that amounts to no signing in view of (C) above. The same as in situations
    one and two will apply. In addition, the pathologist putting his signature
    mechanically on the reports will be liable in the police case for collusion
    / conspiracy / abetting in crime. Additionally, a complaint can be made
    against him to the medical council for violation of code of ethics (actively
    collaborating with a quack).

    SITUATION FOUR—When a laboratory is owned and run by a pathologist who goes
    on leave or vacation and the laboratory continues to function in his absence
    and the reports are signed by the technician—here, primarily, the
    pathologist is liable. Complaint can be made against him in the consumer
    court and the medical council.

    F—Finally, a PIL can be filed in the concerned High Court. Some PILs have
    already been filed / decided in favour of pathologists in High Courts in
    some states.

    ----M C Gupta

    MD (Medicine), LL.M.

    ReplyDelete
  144. *QUESTION—What can be done to stop the menace of technicians signing
    clinical laboratory reports issued by a pathological laboratory?*

    * *

    *ANSWER—*For a proper answer, some related issues must be addressed. Let us
    proceed step by step.

    A—*The first issue is: what is a clinical / pathological test?*

    [image: *] According to the Concise Dictionary of Modern Medicine. ©
    2002, by The McGraw-Hill Companies, Inc., “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 clinical laboratory medicine.

    B—*The second issue is: Who is a clinical laboratory medicine
    specialist?*Logically, any medical person having a recognised degree
    in medicine who has
    obtained a recognised post-graduate qualification in pathology, biochemistry
    or microbiology etc. would be labelled a clinical laboratory medicine
    specialist. The commonest of these specialists are the pathologists. In
    practice, all clinical laboratory medicine reports, of whatever type, are
    generally to as pathology reports. This is justified because, conceptually,
    all of them are aimed at detection and diagnosis of the body pathology in a
    diseased patient.

    C—*The third issue is: What does signing a laboratory report by a clinical
    laboratory medicine specialist mean?* It means two things:

    ONE, that the pathological investigation concerned has been carried out in
    the pathologist’s laboratory by himself or by a competent technician working
    under his supervision and guidance; and,

    TWO, that the report, including its interpretation, has been written by the
    pathologist himself after applying his professional mind as a pathologist.

    D—*The fourth issue is: Does running a pathological laboratory and issuing
    pathological reports or signing such reports amount to practice of medicine?
    * The answer is in the affirmative, as per the Indian medical Council Act,
    1956, quoted in an opinion affidavit submitted to High Court by the MCI. The
    High Court accepted this stand of the MCI and held that running a
    pathological laboratory amounts to practice of medicine and that
    laboratories run by technicians should be closed forthwith.

    E--Four situations can be envisaged for the purpose of answering the
    question asked. These situations, along with the possible legal approach,
    are described below.

    CONTD ...

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