Dr. M.C. Gupta, MD (Medicine), LL.M.,
Advocate; Member, Supreme Court Bar Association; Member, Indian Law Institute; Former Professor and Dean, NIHFW / AIIMS
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
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
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.
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."
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
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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.
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.
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.]
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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.
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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.
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.).
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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
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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.
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.
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.
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.
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.
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.
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—
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.
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.
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.
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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
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.
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.
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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.
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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.
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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.
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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.
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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.
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
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.
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
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
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).
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.
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
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.
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
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
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
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
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
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).
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
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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
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
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.
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
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.
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.
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.
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).
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
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?
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.
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
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”.
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
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
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
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.
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
*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
*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.
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.
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
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
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
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
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
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
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
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
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
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
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.
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.
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.”
*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.
*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.]
*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
*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.)
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
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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
*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.
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."
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.”
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.
*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
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.
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.
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.
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.
*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.”
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.
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
*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.
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.”
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.
*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.
*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.”
*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.
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.
*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.
*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.
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.
*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.
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.
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.
*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.
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.
*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.
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.
*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. “
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.
*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.
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.
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.
*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.
*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. “
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.
*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".
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.
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
*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.**
*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).......................
*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.
*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.
--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.
*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.”
*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.
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.
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.
*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.
*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.
*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.
*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.
*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.**
*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.
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.
*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.
*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?
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.
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.
*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.
*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.
*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
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
"(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.
*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.
“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.
*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.
*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.
*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,"
*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.
*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.
*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.
*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.)
*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.
*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.
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.
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.
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?
ReplyDeleteThanks
AMS
Iam a Pathologist & Transfusion Medicine Specialist with great interest in Stem Cell therapy.
ReplyDeleteIam 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
QUESTION: I am a pathologist with keen interest in Stem Cell Therapy. I understand from ICMR & DBT Guidelines that Stem Cell Therapy is
ReplyDeletemostly 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.
QUESTION—What precautions should be taken by doctors to avoid liability for a FNAC report, which is less reliable than a biopsy report?
ReplyDeleteANSWER-- 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.
QUESTION—Whose property are patient records?
ReplyDeleteANSWER—
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.
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
ReplyDeletegraduation, 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
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?
ReplyDeleteANSWER—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
QUESTION—When an animal tissue or organ is obtained and sent for pathological examination, in whom does the the ownership of the specimen
ReplyDeletelie: 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
QUESTION—What is the correct position about recognition by MCI of the
ReplyDeletequalification 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
QUESTION—I am in UK, having an MBBS degree from India and an FRCPath. from
ReplyDeleteLondon, 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
QUESTION--
ReplyDeleteI 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
QUESTION--Can a doctor refuse treatment in a case of emergency? If a
ReplyDeletedoctor 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
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?
ReplyDeleteANSWER—
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.
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.
ReplyDeleteANSWER—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
QUESTION—Is there anything wrong if a non-medical person is appointed as senior scientific officer in a hospital?
ReplyDeleteANSWER—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
Q1.--Can the state /central government make it compulsory for the private hospitals to treat the swine flu cases?
ReplyDeleteA: 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
QUESTION— A patient comes to a hospital with flu-like symptoms. He is advised symptomatic treatment and rest. No tests are for H1N1 are
ReplyDeleteadvised 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.
QUESTION--Are you sure that doctors have legal and constitutional rights?
ReplyDeleteANSWER—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
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?
ReplyDeleteANSWER—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
QUESTION-- The matter that Physiotherapists, Naturopathy, dieticians writing `Dr.' is a matter of concern. But unfortunately, in India,
ReplyDeletethere 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
QUESTION—What can the medical profession do to curb the practice of quackery?
ReplyDeleteANSWER—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
QUESTION: What are your comments on the following news article in Tribune, datelined 30 October 2009, which can be viewed here—
ReplyDeletehttp://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
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
ReplyDeletethis 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.
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
ReplyDeletethat 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.
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
ReplyDeleteam 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
QUESTION-- Are there any specific guidelines from the MCI regarding preservation of paraffin blocks and glass slides which can be quoted
ReplyDeletein 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.
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 !
ReplyDelete****
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.
QUESTION-- Legally, in India, what is definition of a medico-legal case? How can a Casualty Medical Officer decide whether a particular
ReplyDeletecase /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
QUESTION-- While discharging a Medico-legal case patient, what is the protocols that the hospital/consultant in-charge needs to follow?
ReplyDelete(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
QUESTION— What method should be adopted to inform the police when a medico-legal case admitted in the hospital is being discharged? More specifically:
ReplyDelete--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
QUESTION--Law clearly says that the legal heir/near relatives can demand post mortem. In practice, it poses a great problem. It is very
ReplyDeletedifficult 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
QUESTION—Can a private hospital conduct an autopsy for elucidating the cause
ReplyDeleteof 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.
QUESTION—Is it a valid argument that since the government spends a lot
ReplyDeleteon 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
QUESTION--Is it a workable suggestion that rural service should be
ReplyDeletemade 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
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 ?
ReplyDeleteRESPONSE--
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
QUESTION—What are the possible legal and other implications of the
ReplyDeleterecent 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
QUESTION--Can a hospital make it mandatory to get investigations done only from the hospital?
ReplyDeleteANSWER--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
QUESTION--Can a hospital make it mandatory for the patients to buy medicines from their own hospital pharmacy by incorporating this condition
ReplyDeletein 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.
QUESTION--Can you please guide whether Hospital is considered as an Industry by the Law? Is there any supreme court ruling on this aspect?
ReplyDeleteANSWER— 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
In The Management of Safdarjung Hospital, New Delhi vs. Kuldip Singh Sethi (AIR 1970 SC 1407), a six judge bench unanimously held that
ReplyDeleteSafdarjung 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
DELHI HIGH COURT JUDGMENTS
ReplyDeleteIn 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
Please clarify the Statement that only Radiologists can conduct ultrasounds,
ReplyDelete>> 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
QUESTION— What are the eligibility requirements for performing ultrasonography under the PNDT Act?
ReplyDeleteANSWER—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.
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
ReplyDeletetests 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
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
ReplyDeleteMicrobiology 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.
QUESTION—Which medical council enjoys jurisdiction to investigate a complaint against a doctor?
ReplyDeleteANSWER—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
QUESTION—Patients often demand the original medical records from the hospital and tend to get violent when refused. What is the remedy?
ReplyDeleteANSWER—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
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
ReplyDeleteexpired 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
QUESTION--Delhi Medical Council registers / licenses a doctor only for 5 years, subject to renewal every 5 years on payment of requisite
ReplyDeletefees. 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.
QUESTION—I am a faculty member in forensic medicine and am currently pursuing LL.B. course. I want to know;
ReplyDeletea-- 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
*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?
ReplyDeleteANSWER—*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
*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?** **
ReplyDelete***
*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
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?
ReplyDeleteANSWER—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.
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
ReplyDeleteis 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
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?
ReplyDeleteANSWER—
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
Does unnecessary repetition of investigations amount to malpractice?
ReplyDeleteQUESTION—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
How to deal with a serious indoor patient who is not paying hospital bills?
ReplyDeleteQUESTION –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
Refusal to pay the hospital bill—what to do?
ReplyDeleteQUESTION—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
Recovery of unpaid bill in respect of a patient who died.
ReplyDeleteQUESTION—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
Giving hospital records to the patient in medico-legal cases.
ReplyDeleteQUESTION- 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
Replying to a notice sent by the patient.
ReplyDeleteQUESTION-- 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
Giving to the patient the original reports of investigations paid by him when it is a medico-legal case.
ReplyDeleteQUESTION—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
Discharging a patient when his condition is critical.
ReplyDeleteQUESTION—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
QUESTION—What are the provisions of the regulations no. 6.8 & 6.8.1
ReplyDeletenotified 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.
QUESTION—I am a pathologist. A few days ago, I found that 5 wrong blood
ReplyDeletegroup 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
Can a group of doctors see free movies courtesy pharma companies?*
ReplyDelete*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
*QUESTION—Is it not undesirable that the **National Council / governing body
ReplyDeleteto 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
*I did not treat the patient but have been accused of negligence. What to
ReplyDeletedo?*
* *
*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.
*I gave wrong blood group report. What defence do I have?*
ReplyDelete* *
*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
*QUESTION--Is it legally permissible to keep male and female patients
ReplyDeletetogether 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.
Given below is the latest info about Obama's Health reform Bill. I am very
ReplyDeletehappy 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
*QUESTION—How should proper consent be obtained for performing an
ReplyDeleteintervention 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.
QUESTION—You have been to the USA. While there, did you get the opportunity
ReplyDeleteto 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**
**
*QUESTION—If a pharma company offers to sponsor the visit of a doctor for
ReplyDeletethe 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
QUESTION—If the patient alleges in his complaint that the nature of
ReplyDeleteprognosis 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.
QUESTION--** What precautions should I take in routine obstetric case?***
ReplyDelete* *
*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
QUESTION—When compensation is provided by the court to an aggrieved party
ReplyDeleteon 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
QUESTION—When compensation is provided by the court to an aggrieved party
ReplyDeleteon 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
*QUESTION--** Can law decide that fees beyond a limit cannot be charged?*
ReplyDelete* *
*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
QUESTION--** What should be the language of consent form in an obstetric
ReplyDeletecase?
*
*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
QUESTION—How is it that acts like ’** **West Bengal Medicare Service
ReplyDeletePersons & 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
Contd ...
ReplyDelete*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
QUESTION--** In spite of Supreme courts directives, doctors are frequently harassed and arrested by Police. How can we stop it?
ReplyDelete*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>>>>
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*QUESTION-- Are diagnostic centers run by technicians alone, without
ReplyDeleteemploying 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
*QUESTION--** **What is your opinion about doctors giving and taking a
ReplyDeletecommission 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.
*QUESTION-- Are diagnostic centers run by technicians alone, without
ReplyDeleteemploying 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
QUESTION—** When a patient gets treatment at a hospital, he is the consumer
ReplyDeleteof 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
*QUESTION-- Can a hospital refuse a request for supplying the medical record
ReplyDeletein 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
*QUESTION—Is it valid and legal for the medical council of one state to ask
ReplyDeletea 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.
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
ReplyDeletecomparatively 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
*QUESTION—I have worked as hospital administrator in various hospitals. They
ReplyDeletemaintain 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
c—No. The physician or any other person has no right to give consent on
ReplyDeletebehalf 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.
QUESTION-- We want to get NABL and NABH accreditation for our laboratory
ReplyDeleteand 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 ...
*QUESTION--I am working in an industrial organisation. The factory maintains
ReplyDeletequarters 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.
QUESTION—How much quantity of drugs can be stored in small set-ups where
ReplyDeletedoctors 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.
*QUESTION—False complaints are often filed against doctors alleging
ReplyDelete**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.
QUESTION--Can a rape case victim refuse a medical examination? If yes, how
ReplyDeletewould 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.
*QUESTION—Are physiotherapists, naturopaths and dietitians legally permitted
ReplyDeleteto 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
*QUESTION--* *L**egally speaking, are hospitals classified as "industry" in
ReplyDeleteIndia?*
*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
4--SUMMARY & PRESENT POSITION:
ReplyDeletea--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
e--In 1970, in the Management of Safdarjung Hospital, New Delhi vs. Kuldip
ReplyDeleteSingh 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
*QUESTION--In terms of the Assam Public Health Bill, 2010, passed by the
ReplyDeletestate 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
*QUESTION—The physiotherapists in our hospital are unwilling to stop using
ReplyDeletethe 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
Is MHA a medical degree?*
ReplyDelete**
*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.
QUESTION—*Can an M Sc in non-medical microbiology be appointed as a
ReplyDeletelecturer 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
QUESTION-- I am an M.D. in Community Medicine and want to study for LL.B
ReplyDeletesince 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
*Should autopsy surgeons have the power to decide in which cases to perform
ReplyDeleteautopsy?*
* *
*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
*What is wrong with doctors giving more time and attention to rich patients?
ReplyDelete*
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.,
*QUESTION—It appears that too many requests for autopsies are being sent by
ReplyDeletethe 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
*QUESTION—As per NABL guidelines (NABL-112), a person having an MSc degree
ReplyDeleteand 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
*QUESTION— Can non-medical biochemists and microbiologists legally set
ReplyDeleteup 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
*QUESTION—I am a neuro-psychiatrist having my own private practice. I
ReplyDeletereceived 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
*QUESTION—Is **a forensic expert competent to decide whether post-mortem is
ReplyDeletenecessary 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.
QUESTION—Is there a relation between the time spent by the doctor with the
ReplyDeletepatients 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
QUESTION—What is the status of the medical degree awarded by a university /
ReplyDeletemedical 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.
*QUESTION— I am a registered medical practitioner in terms of the MCI Act.
ReplyDeleteAfter 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
*QUESTION--If** the technician collects a particular sample and also collect
ReplyDeletefees 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
*QUESTION—**Can the post mortem report (PMR) be obtained by filing an
ReplyDeleteapplication 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
*QUESTION--Can a person practice law and medicine at the same time?
ReplyDelete*
*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.
*Who can ask for and receive medical records? *
ReplyDelete*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
*QUESTION-- How to obtain signature / left hand thumb impression of a
ReplyDeletepatient 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.
QUESTION—If somebody wants a copy of post mortem report (PMR), the hospital
ReplyDeleteinsists 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
*QUESTION—Sometimes the relatives of an unconscious patient in a hospital
ReplyDeleterequest 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
*Ref: *A standing parliamentary committee has recommended that, after
ReplyDeletegraduation, *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
--
QUESTION--Can a non-MBBS person be appointed as medical superintendent or
ReplyDeletemedical 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
QUESTION—**Can the post mortem report (PMR) be obtained by filing an
ReplyDeleteapplication 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
*QUESTION—Can a simple MBBS get admission to a PhD course? Is it not
ReplyDeleteirrational? 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
*QUESTION—** **A fresh MD can get appointed as assistant professor and, with
ReplyDelete4 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
*QUESTION— According to a Supreme Court ruling in 2008 (Dr. V. Balaji Vs
ReplyDeleteUnion 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.
QUESTION—An MBBS doctor has been having an ultrasound clinic since 1994.
ReplyDeleteThe 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
*QUESTION—The Supreme Court has held that it is illegal to perform
ReplyDeletepolygraph, 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
*QUESTION—I am an MBBS in state government service. I was sent for 15 days
ReplyDeletetraining 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
*QUESTION—Is the degree of MHA awarded by the AIIMS a medical or a
ReplyDeletenon-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
Can a PG student be considered a medical teacher during his/her study
ReplyDeletetenure ?
>> Yes, if he is teaching MBBS students during his period of
post-graduation.
M C Gupta
*QUESTION—An MBBS doctor underwent three weeks training in Sir Ganga Ram
ReplyDeleteHospital, 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
*QUESTION—I am an MBBS. Will six months training at PGI Chandigarh enable me
ReplyDeleteto:*
*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.
*QUESTION—Is the registration of an ultrasound clinic under the PNDT Act
ReplyDeletevalid 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
*QUESTION—**The Institute of ultrasound Training, 7/1 Prem Nagar, Janakpuri,
ReplyDeleteNew 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.
*QUESTION--Our hospital has started an International Patient Services
ReplyDeleterecently. 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.
*QUESTION-- How much % variation in numerical values of test results from
ReplyDeletedifferent 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
*QUESTION--** **I wonder what is the work domain of an MBBS doctor. He
ReplyDeletecannot 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.
SITUATION ONE—When a laboratory is owned and run by a technician and reports
ReplyDeleteare 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.
*QUESTION—What can be done to stop the menace of technicians signing
ReplyDeleteclinical 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 ...