Dr. M.C. Gupta, MD (Medicine), LL.M.,
Advocate; Member, Supreme Court Bar Association; Member, Indian Law Institute; Former Professor and Dean, NIHFW / AIIMS
*QUESTION-- Section 41 of the Clinical Establishment Bill, 2010, provides for monetary penalty for a physician. It is possible that the physician might have been called by the unregistered establishment in an emergency situation. Would the refusal to attend to such call not amount to an act of negligence on the part of the physician?*
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*ANSWER*—No. The reasons and background are as follows.
A--Clinical Establishment Bill, 2010, has already passed by the Lok Sabha. Section 41 reads as follows:
“41. (1) Whosoever carries on a clinical establishment without registration shall, on conviction for first offence, be punishable with a monetary penalty up to fifty thousand rupees, for second offence with monetary penalty which may extend to two lakh rupees and for any subsequent offence with monetary penalty which may extend to five lakh rupees. (2) Whoever knowingly serves in a clinical establishment which is not duly registered under this Act, shall be punishable with monetary penalty which may extend to twenty-five thousand rupees.”
B—It is clear that after the bill becomes an act and the same is notified, it would be illegal for any clinical establishment to function without registration. Associating with an illegal activity is violative of regulation 1.9 of the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002, which reads as follows:
*1.9 Evasion of Legal Restrictions: *The physician shall observe the laws of the country in regulating the practice of medicine and shall also not assist others to evade such laws. He should be cooperative in observance and enforcement of sanitary laws and regulations in the interest of public health. A physician should observe the provisions of the State Acts like Drugs and Cosmetics Act, 1940; Pharmacy Act, 1948; Narcotic Drugs and Psychotropic substances Act, 1985; Medical Termination of Pregnancy Act, 1971; Transplantation of Human Organ Act, 1994; Mental Health Act, 1987; Environmental Protection Act, 1986; Pre–natal Sex Determination Test Act, 1994; Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954; Persons with Disabilities (Equal Opportunities and Full Participation) Act, 1995 and Bio-Medical Waste (Management and Handling) Rules, 1998 and such other Acts, Rules, Regulations made by the Central/State Governments or local Administrative Bodies or any other relevant Act relating to the protection and promotion of public health.
**
C—It is clear that in view of regulation 1.9, no charge of negligence can lie against a doctor.
D-- Even otherwise, a physician has no legal duty to attend to a person who, not being already his patient, is a stranger and comes to the physician in an emergency. This is clear from regulation 2.1.1 which states:
“2.1.1 Though a physician is not bound to treat each and every person asking his services, he should not only be ever ready to respond to the calls of the sick and the injured, but should be mindful of the high character of his mission and the responsibility he discharges in the course of his professional duties.”
It is clear that the high moral expectation on the part of the physician “to respond to the calls of the sick and the injured” applies only to those situations where the patient comes to him directly “asking his services”. It cannot be extended to an illegal set up admitting patients illegally and then sending a call to a physician to come in an emergency. If the physician responds to such call made by an unregistered clinical establishment, he would be committing an offence under section 41 (2) and would be liable for the consequences.
*QUESTION-- A radiologist owns and runs a diagnostic centre where specimens are collected for testing. The actual testing is outsourced. He then issues the lab reports on his own letter head. Is it legally acceptable?*
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*ANSWER—*No. It is not legally acceptable. The practice of issuing laboratory test reports by a radiologist under his signature amounts to practicing the specialty of pathology and thereby claiming that he is a pathologist. This is violative of regulation 7.20 of the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002, which reads as follows:
*“7.20* A Physician shall not claim to be specialist unless he has a special qualification in that branch.”
D—As per the above definition, the following would logically fall under the title "clinical establishment":
a—Hospitals, nursing homes, dispensaries, OPDs, polyclinics, single doctor clinics etc. maintained or owned by doctors qualified in modern medicine and registered with the MCI.
b-- Same as above in respect of other recognised systems of medicine (Ayurveda, Siddha, Unani, Homeopathy and Yoga & Naturopathy).
c—Acupuncture clinics maintained by doctors qualified in modern medicine and registered with the MCI.
d—Dental clinics etc. maintained or owned by dentists qualified in dentistry and registered with the DCI.
e-Physiotherapy, occupational therapy, speech therapy clinics etc.
f—Optometry and dental hygiene centres.
g—Clinics / service centres maintained by nurses and midwives
h—Psychotherapy, hypnotherapy and clinical psychology clinics.
i—Diagnostic laboratories.
j—Radiological diagnostic, ultrasound and imaging centres
k—Ayurvedic Panch-karma centres
l—Obesity treatment / slimming centres
The above are the main examples. In addition to the above, the government may include other categories.
E—In view of the above, your contention does not seem to be correct.
M C Gupta
MD (Medicine), LL.M. Ex-Professor and Dean Practicing advocate mcgupta44@gmail.com 15 May 2010 **
*QUESTION—I think that the purpose of the so called Clinical Establishment Bill, 2010, is basically to regulate allopathic doctors and particularly the hospitals. What is your opinion?*
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*ANSWER—*
A—There is nothing in the preamble of the bill to give such impression. The preamble of the *Clinical Establishment Bill, 2010, which has already been passed by the Lok Sabha, reads as follows:*
*“*A BILL *to provide for the registration and regulation of clinical establishments in the country and for matters connected therewith or incidental thereto.*
WHEREAS, it is considered expedient to provide for the registration and regulation of clinical establishments with a view to prescribe minimum standards of facilities and services which may be provided by them so that mandate of article 47 of the Constitution for improvement in public health may be achieved. …..”
B—The purpose of a bill or act is usually stated in its preamble. In case of doubt or ambiguity, the courts do not think but rather interpret from the preamble the purpose of the legislation. A basic rule in interpretation of statutes is that a statute has to be interpreted by placing an ordinary grammatical meaning upon the words. This is called the literal rule. Following this approach, it is clear that the Bill has nothing to do specifically with the allopathic system of medicine or its practitioners. As a matter of fact, the words ‘allopathy’ or ‘allopathic’ or ‘modern medicine’ do not find a place at all in the bill.
C—The term clinical establishment is defined in clause 2(c) as follows:
"
(*c*) "clinical establishment" means—
(*i*) a hospital, maternity home, nursing home, dispensary, clinic, sanatorium or an institution by whatever name called that offers services, facilities requiring diagnosis, treatment or care for illness, injury, deformity, abnormality or pregnancy in any recognised system of medicine established and administered or maintained by any person or body of persons, whether incorporated or not; or
(*ii*) a place established as an independent entity or part of an establishment referred to in sub-clause (*i*), in connection with the diagnosis or treatment of diseases where pathological, bacteriological, genetic, radiological, chemical, biological investigations or other diagnostic or investigative services with the aid of laboratory or other medical equipment, are usually carried on, established and administered or maintained by any person or body of persons, whether incorporated or not, and shall include a clinical establishment owned, controlled or managed by—
(*a*) the Government or a department of the Government;
(*b*) a trust, whether public or private;
(*c*) a corporation (including a society) registered under a Central, Provincial or State Act, whether or not owned by the Government;
(*d*) a local authority; and
(*e*) a single doctor,
but, does not include the clinical establishments owned, controlled or managed by the Armed Forces.
*Explanation.— *For the purpose of this clause "Armed Forces" means the forces constituted under the Army Act, 1950, the Air Force Act, 1950 and the Navy Act, 1957;”
The looming danger of the Clinical Establishment Bill, 2010
A--The Clinical Establishment Bill, 2010, has been passed by the Lok Sabha without any discussion. The only remaining steps are its passage by the Rajya Sabha and the President's assent. Then it will be notified and will become law.
B—The Bill contains some unfair and unacceptable provisions. The most objectionable is section 12(2), which reads:
“(*2*) The clinical establishment shall undertake to provide within the staff and facilities available, such medical examination and treatment as may be required to stabilise the emergency medical condition of any individual who comes or is brought to such clinical establishment.”
The words “to stabilize above are defined in section 2(o) as follows:
(“*o*) "to stabilise (with its grammatical variations and cognate expressions)" means, with respect to an emergency medical condition specified in clause (*d*), to provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a clinical establishment.”
C--It has been my sad experience that doctors keep on meekly tolerating injustice that can be legally challenged. They keep on lamenting their fate.
D—I suggest as follows:
ONE--The IMA should immediately deliberate upon the Bill and identify the undesirable / detrimental aspects in the Bill and send a proper and legally drafted representation to;
The representation may contain, inter alia, the following points:
1—On the whole, the IMA supports the purpose of the Bill.
2—The bill needs the following changes:
a—Single doctor establishments should be exempt from the provisions of section 12(2).
b—Section 12(2) imposes a duty without a corresponding right, which is against legal principles. If the government imposes a duty of service on a private party, it has to be linked with a corresponding duty of payment of consideration for the services rendered. The Bill needs to have a clear provision for adequate and reasonable payment to the clinical establishment for the service rendered. The right to health being a fundamental right of a citizen, it is the duty of the government to make adequate arrangements for fulfilment of this right through state resources. If a private hospital is made to provide services, this cannot be free and must be compensated.
c—A time limit needs to be provided in section 12(2) read with section 2(o). This can be 24 hours. Within 24 hours, a nearby government hospital should be legally bound to admit the patient transferred from the private hospital.
d—Section 2(o) needs to be modified. [The IMA may suggest a modifieds version].
e—The major stake holders in this Bill are the doctors but they have been totally ignored. This is undemocratic. Views from various medical groups / associaions / institutes / councils etc. need to be ascertained by inviting comments from them.
f—The Bill was passed by the Lok Sabha in a matter of minutes without any discussion. It was the duty of the elected representatives to deliberate upon the pros and cons of the Bill. The Bill should not be allowed to clear the next stage without wide and meaningful consultations
3—The various steps for the enactment of the Bill [passage in Rajya Sabha; President’s assent; notification] should be held in abeyance till the repercussions of the Bill have been analysed in depth and the suggestions and comments received have been duly considered.
4—The government may give a reply to this representation within a month.
TWO—If no satisfactory reply is received within a month, a writ petition should be filed in the Delhi High Court.
THREE—Before the writ petition is filed, the IMA should start a campaign against the unacceptable aspects of the Bill.
It is surprising that the IMA has not taken any action so far. How can we then blame the government. The government is naturally bound to assume that the IMA / doctors have no problem with this Bill!
QUESTION—What effect will the new **Clinical Establishment Bill, 2010, have on Karnataka which already has a **Karnataka Private Medical Establishments Act, 2007**?***
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*ANSWER—*
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A—On its own, the Clinical Establishment Bill, 2010, once it becomes an Act, will have no effect on Karnataka since health is a state subject as per the Seventh schedule VII, List II, Entry 6 titled “Public health and sanitation, hospitals and dispensaries”
B—Karanataka would be free to adopt the new Clinical Establishment Bill / Act, 2010, in toto or to modify the existing state act on the lines of the new act.
C—If Karnataka adopts the new Act in full or part, the following effects might occur:
1—Government establishments would be brought within the ambit of the Act. That would be desirable.
2—Section 12(2) read with section 2(o) of the new act may be made applicable in the state. This will be undesirable. These sections state as follows:
Section 2(o): (*o*) "to stabilise (with its grammatical variations and cognate expressions)" means, with respect to an emergency medical condition specified in clause (*d*), to provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a clinical establishment.
Section 12(2): (*2*) The clinical establishment shall undertake to provide within the staff and facilities available, such medical examination and treatment as may be required to stabilise the emergency medical condition of any individual who comes or is brought to such clinical establishment.
F—The hospital should be aware of the basic rule of law that courts are not to sit in judgment on matters of technical or professional or medical nature. They are to go by expert opinion. The experts would scrutinize the case sheet. It is important to keep medical notes carefully. It is my sad experience that the medical records in most small hospitals / nursing homes are scanty and of poor quality. A charge of negligence can be refuted if there is proper management of the patient as per principles of medicine and the code of ethics within the facilities expected to be available at the hospital.
G—As regards your statement, “A small hospital may not have the personnel / facilities for proper treatment and may, thereby, be accused of negligence”, the hospital cannot be accused of negligence if the alleged negligence is lack of “the personnel / facilities for proper treatment” even though the staff and facilities are in accordance with the requirements of the Act. If the alleged negligence pertains to negligent acts of the staff that was available, it cannot be condoned.
*How to avoid allegations of negligence when a small hospital is forced to treat emergency patients under the Clinical Establishments Act?*
*QUESTION—The Clinical Establishment Bill / Act, 2010, makes it compulsory for a hospital to admit and treat a patient in emergency till his condition is stabilized. A small hospital may not have the personnel / facilities for proper treatment and may, thereby, be accused of negligence. What should the hospitals do in such a situation?*
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*ANSWER*—The hospital should do as follows:
A—The hospital administrator and doctors should be aware of and should understand various provisions of the Clinical Establishment Bill / Act, 2010; the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002; Consumer Protection Act, 1986, and other health legislations. It is advisable that a semesterly CME program in “health and law” should be organised for professional staff.
B—The hospital should ensure that it fulfills at all times the requirements of the Act as per the terms and conditions under which it is registered. Having less staff or equipment or facilities than what has been agreed can certainly lead to an allegation of negligence / deficiency. The equipment should be under a maintenance service contract and record of its servicing should be kept. Professional staff should have necessary qualifications and licence. It should be checked that they are not fake. Its doctors should always conform to the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002.
C—The hospital and the staff should be aware of the mandate for emergency treatment given in the following sections of the Bill:
Section 2(d): (*d*) "emergency medical condition" means a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) of such a nature that he absence of immediate medical attention could reasonably be expected to result in—
(*i*) placing the health of the individual or, with respect to a pregnant women, the health of the woman or her unborn child, in serious jeopardy; or
(*ii*) serious impairtment to bodily functions; or
(*iii*) serious dysfunction of any organ or part of a body;
Section 2(o): (*o*) "to stabilise (with its grammatical variations and cognate expressions)" means, with respect to an emergency medical condition specified in clause (*d*), to provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a clinical establishment.
Section 12(2): (*2*) The clinical establishment shall undertake to provide within the staff and facilities available, such medical examination and treatment as may be required to stabilise the emergency medical condition of any individual who comes or is brought to such clinical establishment.
D— The hospital and the staff should note that the key words in section 12(2) are: “The clinical establishment shall undertake to provide within the staff and facilities available, such medical examination and treatment as may be…………..”. One has to give due regard to the “staff and facilities available”. The staff and facilities available should be commensurate with that committed at the time of registration.
E—The hospital should ensure that the concerned consultant(s) [preferably a board of 2-3 doctors] should keep a written record of the progress of an emergency medical condition and its stabilization as per the above definition, and whether the staff and facilities available are adequate and, if not so, then whether the patient is advised for transfer elsewhere and whether he is fit for transfer.
Does organizing a health camp violate MCI regulations? QUESTION—I am an MBBS doctor practicing in a village. The death anniversary of my grandfather is approaching. I want to organise a health camp for villagers on this occasion. Some pharmaceutical companies have agreed to provide free medicines, appliances and diagnostic facilities on this occasion. Can I go ahead without breaking any MCI rules?
ANSWER—
A--The rules you have in mind is probably Regulation 6.8.1 of the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002, which 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—It appears that the proposed activity does not involve accepting any gifts, travel facilities, hospitality or cash or monetary grants by you. If this is so, you will not be violating regulation 6.8.1 or any other regulation.
What is the legal limit for stocking of medicines by a clinic or nursing home?
QUESTION—Do practicing doctors in clinics or nursing homes need a licence to stock drugs for use of their patients? Is there any stock limit for this as per the Pharmacy Act or the Drugs And Cosmetics Act?
ANSWER— 1--The Pharmacy Act applies to pharmacists, not doctors. 2--The Drugs and Cosmetics Act, 1940, is “An Act to regulate the import, manufacture, distribution and sale of drugs”. Thus basically, it does not apply to clinics and nursing homes. There is nothing in this Act related to the query you have posed.
3—What applies to doctors is the 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.”
The point to be noted is that a doctor in a clinic or nursing home does not sell the medicine to the patient. Rather, he supplies it.
4—In view of the above, there is no limit prescribed for stocking a drug meant to be supplied to the patients treated at the clinic or the nursing home. It is expected that reasonable quantities would be stocked. What is reasonable would depend upon the actual situation.
M C Gupta MD (Medicine), LL.M. Ex-Professor and Dean Practicing advocate
QUESTION—Can a doctor registered with a medical council in India on the basis of his MBBS degree practice as a specialist in India on the basis of specialist qualifications acquired in USA?
ANSWER—
1—Being registered with the medical council, any doctor can practice anywhere in India. 2—Practicing as a specialist is covered by 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.”
3—The list of qualifications from USA and other countries that are recognised by the MCI is given in the schedule(s) to the Indian Medical Council Act, 1956.
4—If somebody has an American specialist qualification that is not included in the schedule but is employed in government service on the basis of such qualification, his employment can be challenged in a court and the courts may quash the appointment. There are court judgments on these lines.
5-- If somebody has an American specialist qualification that is not included in the schedule but he is practicing or is employed in a private hospital on the basis of such qualification, his practice or employment can still be challenged legally but such challenge is rare. Even if challenged, it may be possible to refute the allegation of medical negligence or violation of regulation 7.20 effectively.
M C Gupta MD (Medicine), LL.M. Ex-Professor and Dean Practicing advocate mcgupta44@gmail.com
Can a person who has been a resident in ophthalmology for 3 years but has no qualification in the subject practice as an ophthalmologist? QUESTION--A doctor passed DNB part one, got admission to DNB part two and completed three yeasr of residency in ophthalmology. He has not yet cleared the final examination for DNB (Ophthalmology). Can he start his private practice and perform cataract and other eye surgeries?
ANSWER—No. Such a person would be violating 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.”
As a result, he would be liable to civil and criminal prosecution under various laws, including the Consumer Protection Act, 1986.
M C Gupta MD (Medicine), LL.M. Ex-Professor and Dean Practicing advocate mcgupta44@gmail.com 12 June 2010
The legal aspects of the concept of nurse practitioners.
QUESTION--Several public health programs are looking at the possibility of nurse practitioners / nurse-led clinics. Can a nurse give a prescription to a patient on her own as per law?
ANSWER—No. As per law, a nurse is not competent to prescribe a medicine to a patient. Prescription is based upon diagnosis and the diagnosis is based upon the clinical history, physical examination and investigations as necessary. All the prior steps before issuing a prescription fall in the medical domain. Prescription is not merely the act of writing the names of medicines on a piece of paper. It involves deep medical knowledge and application of mind, which, if not applied, can result in civil and criminal penalties for medical negligence. Law draws a clear distinction between the jobs of a doctor and a nurse. This is clear from there being two different statutory councils—the MCI and the Nursing Council of India. Nurse practitioners in India can come into existence only after appropriate legislation is passed for the same.
M C Gupta MD (Medicine), LL.M. Ex-Professor and Dean Practicing advocate mcgupta44@gmail.com 12 June 2010
1—Only MBBS doctors should be employed in the hospital. 2—A written undertaking should be taken from the patient and two relatives that they would not indulge in violence and that any loss to hospital property as a result of violence caused by them would be recoverable from them.
3—Hospital records in respect of patients (case sheets) should be properly kept.
4—Treating doctors should spend sufficient time with the patients and relatives to answer their doubts and queries.
5—The consent form should not be got signed in a cursory manner. It should be an informed consent in the true sense.
6—No false assurances, even verbal, should be given to patients.
7—Patients should be clearly and documentedly told that they are free to shift their patient to any other hospital at any time.
8—Prompt police complaints should be made against those who commit violence. Video cameras should be installed at a few places to record the photographs and voice of any bad elements who commit violence. This would greatly help in making a police complaint and pursuing it.
NOTE—
Some nursing homes may be small nursing homes with only a few beds. However, all the above measures need to be taken for every nursing home, big or small. The smaller the hospital, the more the chances of violence against it.
M C Gupta MD (Medicine), LL.M. Ex-Professor and Dean Practicing advocate mcgupta44@gmail.com 12 June 2010
What should the nursing homes do to prevent and tackle instances of violence?
QUESTION—Attacks on nursing homes are getting more and more frequent. What should the nursing home owners do?
ANSWER—
The nursing homes should do the following:
A—They should take steps to minimise the possibility of such attacks. Examples of such steps are:
1- The Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002, should be strictly complied with.
2—A notice should be prominently displaced providing information to the public about the actions that an aggrieved patient may take. Such information may include:
a—Name and mobile telephone number of the person / doctor who is officially assigned the duty of attending patient complaints / emergencies on 24 hour basis.
b--Name of the person in charge and the members of the “Patients Grievance Redressal Committee” of the hospital or nursing home concerned and the time limit [say, 48 hours] during which the Committee would take initial necessary action;
c-- Name and address of the local IMA “Patients Grievance Cell”, if such a cell exists; d—Name and address of the state medical council; e-- Name and address of the District Consumer Forum.
3—The following information should also be prominently displayed:
a—Schedule of hospital charges; b—Names, qualifications and medical council registration numbers of all doctors.
B—They should buy a hospital professional indemnity policy through a legal risk cover company. While choosing the legal risk cover company, they should choose that company whose terms and conditions include a written clause that the company will provide legal services in connection with criminal / police complaints related to violence against the hospital.
C—They should organise a collective nursing home defence mechanism through the local IMA. If this is not possible, a few nursing homes should come together on their own to form such a joint mechanism. Such joint defence mechanism, JDM, would do the following:
1—It would collect fees from members and keep proper accounts; 2—It would provide the following services to the members:
a—Liaising with the police; b-- Organising joint seminars on the issues related to nursing home protection. The local police officers; CMO; DM; media and some persons from the legal field, if possible the magistrate or sessions judge, should be invited on these occasions and they should be requested to express their views. c—Engaging the services of an advocate on the criminal side to act as a standing counsel for the member nursing homes for any legal help at times of violence. d—Engaging the services of a security agency to provide security cover in normal times as well, additionally, in emergencies, to the member nursing homes.
D—The cost of the JDM incurred by the member nursing homes should be recovered, in part or full, as appropriate, from the patients by adding an item in the bill, such as, “Protection against violence charges”. Such charges should be levied in a transparent manner and should be supported by proper accounting procedures. The consent form signed by the patient at the time of admission should clearly state that the signatory consents to pay the “hospital patients protection charges”.
QUESTION—Are there sufficient legal grounds for doctors to oppose the Clinical Establishment Bill / Act, 2010?
ANSWER—The Bill has already been passed by the Lok Sabha. It may be passed by the Rajya Sabha soon. Doctors need to move the courts to protect their fundamental rights which are sought to be infringed by the proposed Bill. It is true that if the courts are petitioned against violation of fundamental rights even after the legislation has come into force, the same can still be struck down. However, it is better to nip the evil in the bud. Once it becomes a law, the courts, even if they admit the writ petition against it, may not grant stay against its operation and it may continue to be in force while the litigation is pending. The real danger is that if doctors are not concerned now, when the attack is being openly planned against them, they are unlikely to protest when the attack is actually made. As a result, what is likely is that they will be further emasculated and will wail and whine and cry even more, with no effect.
The main objection is to Section 12(2) read with section 2(o) of the Bill. These sections state as follows:
”Section 2(o): "to stabilise (with its grammatical variations and cognate expressions)" means, with respect to an emergency medical condition specified in clause (d), to provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a clinical establishment.
Section 12(2): (2) The clinical establishment shall undertake to provide within the staff and facilities available, such medical examination and treatment as may be required to stabilise the emergency medical condition of any individual who comes or is brought to such clinical establishment”.
... The plain meaning of the above is that if a patient comes to the hospital at any time with myocardial infarction, strangulated hernia, ectopic pregnancy, appendicular abscess, peritonitis, stab injury, fracture hip, fetal distress in a full term pregnant woman needing Caesarian section, acute glomerulonephritis or retention of urine etc., all of which need active, immediate, costly surgery or other intervention, the hospital would have to provide “such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a clinical establishment”. There is no mention in the Bill about three things: Who will pay for the treatment? Where will the patient be transferred? Who will pay for the cost of transfer? All doctors know, in actual practice, that the government hospitals will not take the patient saying they have no bed vacant; the private hospitals will not take in the patient who is unlikely to pay; the patient would refuse to pay even the cost of transfer and will threaten to sue the hospital under the “Clinical Establishment Act, 2010” if the condition of the patient suffers!
The fundamental rights of the doctors that will be violated are those granted under articles 19 and 21.
Under article 19(g), all citizens have a fundamental right to “to practise any profession, or to carry on any occupation, trade or business”. Practising any profession or carrying out any occupation, trade or business means doing so for profit and not for charity.
Article 21 specifically states that “No person shall be deprived of his life or personal liberty except according to procedure established by law”. The Supreme Court has held in various judgments that right to life includes right to earn a living.
Thus the proposed Bill restricts the right to earn and to practice the profession freely in order to earn the wherewithal. Besides, the proposed Bill is violative of the basic legal principle that there cannot be a duty without a corresponding right. The proposed Bill imposes a duty to provide costly treatment without any provision for paying the cost. The citizens have a fundamental right to health as held by the Supreme Court in its interpretation of the right to life under article 21. This right to health is against the government. It is the duty of the government to ensure that everybody’s health is protected. This duty cannot be passed on to other citizens / doctors by the clever and colourable device of the proposed Bill. This amounts to robbing Peter to pay Paul.
M C Gupta MD (Medicine), LL.M. Ex-Professor and Dean Practicing advocate mcgupta44@gmail.com 17 June 2010
Permission for performing autopsy given to MBBS doctors but denied to medical colleges.
QUESTION—The government of Uttar Pradesh has not granted permission for doing autopsies in government medical colleges while the autopsies are routinely being carried out by MBBS doctors employed in the Provincial Medical Service in UP. What should be done?
ANSWER—The situation described is unreasonable, unjust, unscientific and against public interest. Expert legal opinion should be obtained about possible remedy. This should preferably be done by an association such as the following:
--An association of forensic medicine specialists; -- An association of medical teachers; --IMA. --Resident Doctors’ Association --Medical Students’ Association
M C Gupta MD (Medicine), LL.M. Ex-Professor and Dean Practicing advocate mcgupta44@gmail.com 19 June 2010
Please find enclosed my comments on the white paper prepared by the IMA on the Clinical Establishments Bill, 2010.
COMMENTS
A--This is a good attempt.
B—A vital lacuna is lack of any reference to Section 12(2) read with section 2(o) of the Bill as explained below:
1- These are the most offending sections and read as follows:
”Section 2(o): "to stabilise (with its grammatical variations and cognate expressions)" means, with respect to an emergency medical condition specified in clause (d), to provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a clinical establishment.
Section 12(2): (2) The clinical establishment shall undertake to provide within the staff and facilities available, such medical examination and treatment as may be required to stabilise the emergency medical condition of any individual who comes or is brought to such clinical establishment”.
2--The plain meaning of the above is that if a patient comes to the hospital at any time with myocardial infarction, strangulated hernia, ectopic pregnancy, appendicular abscess, perforated intestine, peritonitis, stab injury, burns, fracture hip, fetal distress in a full term pregnant woman needing Caesarian section, acute glomerulonephritis or retention of urine etc., all of which need active, immediate, costly surgery or other intervention, the hospital would have to provide “such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a clinical establishment”. There is no mention in the Bill about three things: Who will pay for the treatment? Where will the patient be transferred? Who will pay for the cost of transfer? All doctors know, in actual practice, that the government hospitals will not take the patient saying they have no bed vacant; the private hospitals will not take in the patient who is unlikely to pay; the patient would refuse to pay even the cost of transfer and will threaten to sue the hospital under the “Clinical Establishment Act, 2010” if the condition of the patient suffers! Please note that it will be no defence that the hospital did not charge any fees. The patient will still be entitled to sue the hospital under the Consumer Protection Act for which the patient need not engage an advocate or incur any expenses.
3--The proposed Act violates the fundamental right granted under article 21. Article 21 reads “No person shall be deprived of his life or personal liberty except according to procedure established by law”. The Supreme Court has held in various judgments that right to life includes right to earn a living. The owner of a hospital cannot be deprived of his right to earn a living by forcing him to indulge in charitable work.
4--The proposed Act violates the fundamental right granted under article 19(g), under which all citizens have a fundamental right to “to practise any profession, or to carry on any occupation, trade or business”. Practising any profession or carrying out any occupation, trade or business means doing so for profit and not for charity. The proposed Bill restricts the right to earn and to practice the profession freely in order to earn the wherewithal.
5—It is true that restrictions can be imposed upon a fundamental freedoms granted under article 19 as long as the restrictions so imposed are reasonable. It is submitted that the fundamental right to practice medical profession and thereby earn one’s living is sought to be unreasonably restricted by forcing a doctor / clinical establishment to provide treatment on a charitable basis. This would be analogous to passing a Legal Establishments Act and thereby forcing senior advocates like Sh. Ram Jethamalani and Sh. Arun Jaitley to provide free legal services to whosoever happens to ring their door bell for arguing their case and securing for them a bail in a murder or rape case. The parallel in the case of legal aid is the legal aid cells established by the government at state expense. The same principle ought to be followed as regards medical aid. There cannot be different yardsticks for different professions or professionals.
6- The proposed Act is violative of existing laws. Regulation 2.1.1 of the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002, clearly states that “a physician is not bound to treat each and every person asking his services”. The proposed Act hits at the very roots of professional freedom by making it obligatory for a doctor / hospital to treat each and every person asking his services in the garb of emergency treatment. The full text of Regulation 2.1.1 is as follows:
“2.1.1 Though a physician is not bound to treat each and every person asking his services, he should not only be ever ready to respond to the calls of the sick and the injured, but should be mindful of the high character of his mission and the responsibility he discharges in the course of his professional duties. In his treatment, he should never forget that the health and the lives of those entrusted to his care depend on his skill and attention. A physician should endeavour to add to the comfort of the sick by making his visits at the hour indicated to the patients. A physician advising a patient to seek service of another physician is acceptable, however, in case of emergency a physician must treat the patient. No physician shall arbitrarily refuse treatment to a patient. However for good reason, when a patient is suffering from an ailment which is not within the range of experience of the treating physician, the physician may refuse treatment and refer the patient to another physician.”
7--The proposed Act is violative of the basic legal principle that there cannot be a duty without a corresponding right. The proposed Bill imposes a duty to provide costly treatment without any provision for paying the cost. The citizens have a fundamental right to health as held by the Supreme Court in its interpretation of the right to life under article 21. This right to health is against the government. It is the duty of the government to ensure that everybody’s health is protected. This duty cannot be passed on to other citizens / doctors by the clever and colourable device of the proposed Bill. This amounts to robbing Peter to pay Paul.
C—Many laws are mentioned without citing the year of the concerned legislation.
D—There are some serious editing blunders. “Executer” is used for “Executive”. “Tangential” is used for “Substantial”. There are some other editing gaps also.
QUESTION—Who can issue a valid disability certificate? Can a certificate be issued by any private doctor or nursing home where the patient was treated?
ANSWER— 1--The answer to this question depends upon the purpose for which the certificate has to be valid.
2—If the purpose is to claim compensation for disability caused by accident, a certificate issued by the treating doctor or nursing home certifying that the patient was treated for the specified accidental injury and that, as a result of the injury, the patient has been rendered disabled in the manner specified may be sufficient to form a basis for claiming compensation in general. (However, the exact quantification of the degree of disability in terms of the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, will certainly help in adjudicating upon the amount of compensation claimed).
3-- If the purpose is to claim compensation for disability caused by alleged medical negligence, a certificate / expert opinion issued by any doctor qualified in the specialty concerned, to the effect that the treatment was negligent and resulted in disability would be sufficient to reasonably claim negligence and compensation. (However, the exact quantification of the degree of disability in terms of the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, will certainly help in adjudicating upon the amount of compensation claimed).
4---- If the purpose is to get a job reserved for Persons with Disabilities out of the 3% quota in terms of the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, it is mandatory that the certificate should be issued by a "medical authority" as defined in the Act, which means “any hospital or institution specified for the purposes of this Act by notification by the appropriate Government”.
5—The “the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 1996” further state as follows:
“ Authorities to give disability Certificate. - (1) A Disability Certificate shall be issued by a Medical Board duly constituted by the Central and the State Government. (2) The State Government may constitute a Medical Board consisting of at least three members out of which at least one shall be a specialist in the particular field for assessing locomotor/visual including low vision/hearing and speech disability, mental retardation and leprosy cured, as the case may be”.
M C Gupta MD (Medicine), LL.M. Ex-Professor and Dean Practicing advocate mcgupta44@gmail.com 25 June 2010
Who should inform the police about an MLC—the small dispensary or the referred hospital?* **
*QUESTION—If a medico-legal case comes to a small dispensary/primary care doctor who renders necessary first aid and refers the patient to a hospital without loss of time, will he or the hospital be responsible for informing the police?*
* *
*ANSWER—*The responsibility lies squarely upon the first person who comes to know about the case. It is immaterial whether it is a small dispensary or a primary care doctor.
If an assistant professor of medicine has not taken theory classes in medicine, can he be eligible for the post of associate professor? *
**
*QUESTION--**Faculty recruitment in Medical Colleges begins even before the LOI (Letter of intent), while the first batch of MBBS students is admitted after the LOP (Letter of permission). In such a situation, if a person joined as assistant professor of medicine in October 2005 and the first batch was admitted in July 2006 and theory classes in medicine started in January 2008 as per MCI pattern, and the concerned faculty member resigned from his job in Dec 2007 (after an experience of 2 years and 3 months) and joined again in a new college being established before LOI, and again gained experience of 2 years and 3 months, and has also published two research papers in indexed journals in the meantime, then will he be legally eligible to become Associate Professor like any other faculty member in a medical college, keeping in mind the fact that during his tenure of Assistant Professor he has not taken any theory class?*
**
*ANSWER—*Whether he would be legally eligible or not would depend upon detailed legal scrutiny of concerned rules and documents. There cannot be a casual answer to a legal question. However, the following needs to be borne in mind:
1—If somebody is appointed and paid as an assistant professor of medicine, he is an assistant professor of medicine. An assistant professor of medicine is expected to perform three functions: teaching (he was teaching students during their clinical postings over the first three semesters. He was also probably designing, in advance, the teaching curriculum for teaching of medicine to the fourth semester. Curriculum designing is very much a part of teaching,); patient care (he was obviously treating patients); and, research (he has, admittedly, carried out and published his research). So he has fully performed the various functions he was supposed to carry out as an assistant professor of medicine. Hence he would be eligible for appointment as Associate Professor if he fulfils the requirements.
2—If somebody is eligible for a post, he may or may not be selected.. If he is selected by a committee of experts, he is obviously worth it.
QUESTION—**Three years teaching experience is mandatory** **for appointment as Assistant Professor as per rules. Those who pass MD are given the benefit of considering their duties towards training undergraduate medical students in their capacity as tutor, demonstrator or resident towards teaching experience. Such benefit is given even to those who have got their MD from institutions where there is no MBBS course, such as the PGIMER, Chandigarh. Is this legally correct?*
**
*ANSWER*—As per the facts given by you, it is certainly illegal. If these facts are correct, no court will uphold this illegal practice. The remedy can be sought by a writ petition in the high court. However, before taking the legal route, one must carefully study the documents concerned. I won’t be surprised if the so called mandatory requirement states that the candidate must have “three years teaching or research experience”. The 3 years’ experience of research during the period of the MD course would then qualify towards eligibility.
*QUESTION—The requirement for appointment as external examiners for MBBS examination being that the person should be at least an Associate Professor in a medical institute, is it a legally sound practice to have examiners from places where there is no MBBS course, such as the PGIMER, Chandigarh?*
**
*ANSWER—*If a person fulfils the requirement for being appointed as an external examiner and his name is approved by the university conducting the examination, there is no illegality involved in his appointment, irrespective of the fact as to whether his employer institution has an MBBS course or not.
*QUESTION—If a doctor with postgraduate degree in India joins a residency training program in UK leading to MRCP etc., and gets trained in skills like endoscopy, cystoscopy, echocardiography etc. as a part of the residency programme, will he be able to practice such skills in India?*
* *
*ANSWER*—Let us suppose the doctor learns to perform gastroscopy but does not have a degree in gastro-enterology. Regulation 7.20 of the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002, is reproduced below:
*“7.20* A Physician shall not claim to be specialist unless he has a special qualification in that branch.”
If he claims to be a gastro-enterologist, he would be breaching the above regulation. However, if he holds out as an internist with special interest in gastro-enterology and endoscopy, he would not be breaching the regulation.
So, the answer to your question is, yes, he would be able to practice the skills. However, it is advisable that he should have documentary proof of proficiency in such skills.
*QUESTION--Private medical colleges are treating faculty as bonded laborers. As an example, if a faculty member is a recognised PG teacher for the academic session starting 2010 and a PG seat has been allotted against his name, then he cannot leave the job for 3 years, till 2013. If another PG seat is given in 2012, he cannot leave till 2014. This can continue indefinitely and he can be kept in perpetual bondage. What is the solution?*
*ANSWER—*The solution is that he should strictly go by the appointment letter at the time of joining service. Any appointment letter contains a clause about the conditions for leaving service. He should join only if the conditions are acceptable to him. If he wants to leave the job in the manner laid down in the appointment letter, nobody can stop him. I don’t think highly educated persons like professors in medical colleges can be kept as bonded labour. If any injustice is committed against them, they can always approach the courts.
QUESTION—I am an MD in pathology having my own private laboratory. People come to me for DNA tests for paternity. Can I do such tests? What is the legal position?*
* *
*ANSWER*—To the best of my knowledge, there is no law that a private laboratory cannot carry out DNA paternity tests. However, the following points need to be kept in mind:
1—The information / test report should be revealed only to the person concerned in such a manner that the charge of breach of confidentiality between the client / patient and the doctor is not attracted.
2—Since the results of such tests are likely to result in legal proceedings, proper records must be kept as regards: sample collection; signed and informed consent from the person from whose body the sample has been taken, if the person is an adult (the informed consent means such consent should be taken in writing after informing the person about the % possibility of false positive or negative results); records of the test itself, including the standardisation / calibration of the testing apparatus and chemical reagents / matching standard etc., along with documented proof that the machine was in proper working condition as evidenced by it being regularly checked under an annual maintenance contract etc.
3--If the person whose sample is to be tested is not an adult, then both the parents must give a joint written consent in their capacity as guardians. In such a situation, the result should be communicated to the parents jointly and not to the child.
4—While taking consent, the consenter should be asked to certify in writing that no complaint or suit or legal proceeding is pending in any court where the paternity might be an issue. If such case is pending, the laboratory should not carry out the test unless there is a communication from the court stating that it has no objection if the test is carried out. Otherwise, performing such test might be alleged as constituting an interference in the course of justice.
health is a state subject: the maharashtra govt. is hell bent in allowing DMLT to practice pathology for that they are contemplating amendment in the maharashtra medical practioners act where they will add that dmlt is not a allopathic practice so that dmlt will be clubbed with indian medical system and allowed to run labs. __ can they do this.?
QUESTION—Can a hospital admit an unconscious patient whose identity is not known and who has been brought to emergency by some unknown passer-by, after the hospital has informed the police? Can doctors proceed for a life- saving emergency operation, if required?*
*ANSWER—*I am a bit surprised at the question. There should not be any doubt regarding the following: 1—It is the duty of the hospital to admit a serious patient immediately without loss of even a minute and to start the treatment at once.
2—Information to the police can wait. The first thing should be to admit the unconscious patient and to start immediate treatment. Police may be informed when possible and feasible. Some delay in informing the police will not matter. The hospital does not need permission from the police to admit the patient. There is no rule that the patient cannot be admitted without informing the police. The Supreme Court had clearly laid down in Parmanand Katara case that formalities like informing the police and preparing the MLC can wait but the primary duty of the doctors, namely, saving life, should be attended to immediately.
3—Doctors can certainly proceed with a life- saving emergency operation, in the situation described.
QUESTION—Can a hospital produce electronic medical records (EMR) to the court instead of the hand written BHT?*
ANSWER—***
1—The court needs hard copies, not soft copies. If the records are in electronic form, print outs should be submitted to the court.
2—The courts need original record or certified copy of the original. If the original record is in the form of hand written BHT (Bed head ticket), a photocopy of the same, signed by the hospital authorities should be submitted to the court along with a typed copy of the same.
3—I think it is better to use the term hospital case sheet rather than BHT.
QUESTION—I am an ophthalmologist in South India. A few years back we had a Punjabi residing in the south, who was advised immediate cataract operation, to avoid an impending glaucoma. She instead came to us for a second opinion. Honestly we found no pathology and told her so. She was so relieved. But it was a shock for us - such unprofessional conduct! * How to deal with such a menace?*
*ANSWER—*There are legal and effective means to deal with such a menace but they cannot yield an immediate result. One has to spend time and effort and money but the results will be sure to come. Those who want to uphold proper medical standards should be prepared to make the necessary expenditure.
Here is what can be done: 1—Complaint to the state medical council against the doctor by the patient, requesting the council to cancel the doctor’s licence.
2-- Complaint to state medical council by a doctor under Regulation 1.7 of the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002, which reads:
“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.”
3-- Complaint to District Consumer Forum by the patient, requesting the Forum to award compensation.
4—Complaint to state Health Directorate against the hospital, requesting the Directorate to punish the hospital by cancelling its registration etc.
5—If the state has a Clinical Establishment Act, then a complaint to the appropriate authority so designated under the Act, requesting them to cancel the licence issued to the hospital.
6—In the circumstances of this case, which need to be studied on the basis of documents, even a case of cheating may lie against the doctor concerned and the owner of the hospital and a police complaint may be lodged, requesting the court to arrest the persons guilty of the criminal act.
7—Complaint to the state / all-India ophthalmology society, requesting the society to cancel the membership of the concerned ophthalmologist.
It would be better to get the help of an advocate or a consumer society for the above actions.
QUESTION—What is the format of consent for a non-medico-legal autopsy / pathological autopsy / clinical autopsy, to be signed by the next of the kin?*
*ANSWER*—I do not know of any standard format. I suggest the following:
“I / we hereby give consent that an autopsy may be performed upon our relative Sh. / Smt. ………………….. subject to the following:
a—The autopsy may be performed on any part(s) of the body / may be limited to the following parts: …………….
b—Organ(s) / Tissue(s) may be taken out of the body for future use as deemed necessary by the doctors concerned.
c—Autopsy report would be kept confidential but may be used for scientific / legal purposes. The report would be made available to the person(s) giving consent.
Name, Signatures, address, telephone no. of the person(s) giving consent.
Name, Signatures, address, telephone no. of two witnesses.
Status of postgraduate diploma holders* *QUESTION—Please answer the following queries related to holders of diplomas such as **DCH, DMRE, DGO, DMRD, DOMS etc., who are semi- qualified, semi- skilled:*
*A—Can they act as consultants?* *B—Can a family practitioner safely refer patients to them and treat his patients as per their advice, without being held guilty of negligence?*
*ANSWER—*Diploma holders are NOT semi-qualified or semi-skilled. The answer to A and B is in the affirmative.
QUESTION--** When a doctor found negligent by a District Consumer Forum is found non-negligent by the State or National Commission, why should not the District Forum itself be held liable for negligence?** *
*ANSWER—*The reason is that the Consumer forums / commissions, being quasi-judicial tribunals, enjoy judicial immunity similar to the courts of law*. *Judicial immunity provides those exercising judicial functions in a court with exemption from all civil liability for anything done or said by them in their judicial capacity.
The rationale underlying judicial immunity was expressed by Lord Denning MR in *Sirros*
*v. Moore *[1975] QB 118 at 136 to be:
“Every judge of the courts of this land from the highest to the lowest should be protected to the same degree, and liable to the same degree. If the reason underlying this immunity is to ensure “that they may be free in thought and independent in judgment”, it applies to every judge, whatever his rank. Each should be protected from liability to damages when he is acting judicially. Each should be able to do his work in complete independence and free from fear. He should not have to turn the pages of his books with trembling fingers, asking himself; “If I do this, shall I be liable in damages?” So long as he does his work in the honest belief that it is within his jurisdiction, then he is not liable to an action.”
How not to treat a patient with trembling hands, always afraid of a negligence suit?*
QUESTION--What is the way out so that a doctor does not treat a patient with trembling hands thinking that he might be held legally liable for negligence in spite of giving treatment to the best of his ability and knowledge?
******* ANSWER--The way out is as follows: 1—First of all, a doctor should accept the fact that he is an ordinary human being and not a demi-god or a super-sincere saint or a super-knowledgeable expert whose actions and decisions ought to be beyond questioning by lesser mortals. 2--Once he accepts the above, he should also be able to accept the need for proper record keeping and proper decision making based on sound and proven scientific principles and practices. It is only such sound records and decisions that would save him from false allegations of negligence. 3—That the above guidelines are extremely important and not unnecessary is shown by the following illustrative examples: a—In a 350 bedded hospital that I recently visited, I was asked by senior doctors as to whether it was necessary to keep records of outdoor treatment. The hospital was not keeping any records. I had to bluntly tell them that OPD records were being retained in AIIMS even in 1959 when I joined it as a medical student.
b—In the same hospital, I was informed that whenever the patient asked to have the indoor case sheet, the same was being given to him in original without even keeping a photocopy.
c—A patient had been operated thrice by an orthopedic surgeon and I was defending him in the National Commission. The NC wanted to have a copy of the 3 case sheets but these were just not available. Luckily, he found them in some junk heap a few days before the hearing. They were very sketchy, but I was able to save him.
d—In a case where I was defending the doctors, I found the following gem recorded in black and white in the hand writing of an MD (anaesthesia), duly signed: “To give immediately Injection Lasix 1 gm. Intravenous bolus injection every 2 minutes, total 5g.” The patient was 70 years old and was undergoing arthroscopy of knee. He died within 45 minutes of the 5g. dose.
4—Please remember that the duty of a doctor does not end with giving “treatment to the best of his ability and knowledge”. That the ability and knowledgeare “best” cannot be assumed and may have to be proven. 5—Just as it is necessary for a judge to give a "speaking" or "reasoned" judgment running over several pages, so is it necessary for a doctor to record the facts and rationale of treatment over at least a few lines.
6—I can understand as a doctor that there may be emergency situations where doctors cannot write detailed records while they are attending to a serious patient. What I cannot understand is why doctors cannot write proper notes after the treatment has been given and they have some time.
7--Please note that it is perfectly legal to write notes after the treatment has been given as long as the background and the circumstances are explained. For example, the notes may read something like this: “This patient was brought to the casualty at 4 p.m. When examined, he had severe gasping. Resp. rate—35 p.m. Chest expansion and air entry almost nil. Mild cyanosis + Immediate oxygen was started. Tracheostomy started at about 4-05 p.m. and completed at about 4-10 p.m. Condition improved markedly. RR 20/min. Operation notes as follows:
……………………….
………………………..
……………………..
Signed: Dr. ABC [These notes were written at about 4-20 p.m. after the emergency had been attended to and life- saving treatment had been given].
QUESTION—The technology wing of our hospital is situated 8 km. away from the hospital. Patients for “sleep study” **are admitted there at 6 PM and are discharged at 6 AM next day. During this period, they are under the care of a nurse and MSW while a doctor is on call.*
*Please answer the following—*
*1—Are these patients inpatients or outpatients? *2--- Can / should they be given an in-patient no. (IP no.) of the main hospital.?* *3--- If not, then are there any problems expected in the event of any mishap ? *
* * *ANSWER—*The answer to the first two questions is in the affirmative. The following would make the situation clear:
2—A patient can be an inpatient of only a hospital, not of a technology wing manned by a nurse and MSW. Hence these inpatients are to be given an IP no. of the main hospital.
3—If the patient is not admitted as an inpatient of the main hospital and does not have an IP registration no. of the main hospital and an untoward incident (death; fall due to sleep walking; sleep apnea; sexual molestation etc.) occurs during the night, the courts will squarely fasten responsibility upon the main hospital. Non-registration as an inpatient of the main hospital is likely to be construed as an attempt to avoid responsibility.
QUESTION –What are your views about the following article published in The Tribune regarding the recent decision of the Delhi State Consumer Commission whereby a pediatrician was asked to pay Rs. 3 lakh to a person who died of stab wounds outside his clinic?*
*ANSWER—*The article is written by a professor of sociology at Delhi University. Some of the statements in the article, along with my comments, are as follows:
1—Through this decision, an Indian citizen’s right to claim emergency healthcare was vindicated.Everyone has a right to emergency health care. [MY COMMENT—A citizen has a fundamental right to health as held by the Supreme Court in its interpretation of Artcle 21 of the Constitution, which states that right to life is a fundamental right. However, let it be clear that a fundamental right operates against the state, not other citizens. There is an even a more fundamental right to food. Health comes later. No citizen can be punished by a court for not giving food to his neighbour who dies of hunger. The fundamental right to food operates against the state, not against others. It is the duty of the state to ensure that citizens don’t die of hunger. Similarly, it is the duty of the state to ensure that citizens don’t die for lack of medical care. In this case, the court was clearly misdirected in holding the doctor responsible in law for the death of the wounded.]
2—This right flows from Article 25 of The Universal Declaration of Human Rights. [MY COMMENT—There is no need to go to the Universal Declaration of Human Rights. Right to health has been recognised as a fundamental right by the Indian Courts].
3— The court reminded the doctor of the Hippocratic oath to render help to a dying man (human being). Doctors are bound by the Hippocratic Oath. [MY COMMENT—The court was talking out of imagination bordering on ignorance. No doctor in India is bound by the Hippocratic Oath. Doctors are bound by theIndian Medical Council (Professional conduct, Etiquette and Ethics)Regulations, 2002. These make no reference to the Hippocratic Oath. Even otherwise, an oath taken by a person voluntarily out of his own conscience cannot be treated as a legal binding or a legal agreement between that person and others. If I take an oath of celibacy, that does not mean a court can punish me for breaking my oath.]
4-- The onus of providing emergency medical attention and referral is undeniably the doctor’s calling. [MY COMMENT—This may be a doctor’s calling at his option and most doctors would abide by it. It is not a legal binding and cannot be enforced against him by law.]
MY FURTHER COMMENTS— a—If a doctor in private practice who is not in any way supported by the state / government provides emergency care to a patient to save his life, he needs to be gratefully thanked and compensated for this by the state through a suitable mechanism [such as the following: Either an insurance scheme for emergency treatment by doctors of persons who are not their patients but are brought to them in an emergency, the insurance premium being paid to the insurance company by the government and the cost of treatment being re-imbursed to the doctor by the insurance company; Or, a scheme such as the solatium fund scheme in respect of those injured or killed by untraceable motor vehicles.]
b—The principle of compensating a doctor for emergency care is clearly reflected by the Railway scheme of giving 10% concession in ticket to doctors so that, for this consideration, they may render any possible medical aid to passengers in emergencies.
c—The forthcoming Clinical Establishments Act, 2010, strikes at the very root of the principles laid down above and seeks to impose a mandatory legal binding, at the threat of punishment, upon all establishments (single doctors’ private OPD clinics as well as hospitals) that they must treat a patient brought in an emergency, without there being any provision for necessary fees. This might as well prove to be the straw that breaks the camel’s back. The pity is that the camel in this case is highly educated and intelligent and prides itself to be the “cream of the cream” and is highly organised in the form of an elephantine organisation called the IMA, which might as well be spelled out as Indian Morose Association. This great profession / organisation refuses to see what is written on the wall.
3— The court reminded the doctor of the Hippocratic oath to render help to a dying man (human being). Doctors are bound by the Hippocratic Oath. [MY COMMENT—The court was talking out of imagination bordering on ignorance. No doctor in India is bound by the Hippocratic Oath. Doctors are bound by theIndian Medical Council (Professional conduct, Etiquette and Ethics)Regulations, 2002. These make no reference to the Hippocratic Oath. Even otherwise, an oath taken by a person voluntarily out of his own conscience cannot be treated as a legal binding or a legal agreement between that person and others. If I take an oath of celibacy, that does not mean a court can punish me for breaking my oath.]
4-- The onus of providing emergency medical attention and referral is undeniably the doctor’s calling. [MY COMMENT—This may be a doctor’s calling at his option and most doctors would abide by it. It is not a legal binding and cannot be enforced against him by law.]
MY FURTHER COMMENTS— a—If a doctor in private practice who is not in any way supported by the state / government provides emergency care to a patient to save his life, he needs to be gratefully thanked and compensated for this by the state through a suitable mechanism [such as the following: Either an insurance scheme for emergency treatment by doctors of persons who are not their patients but are brought to them in an emergency, the insurance premium being paid to the insurance company by the government and the cost of treatment being re-imbursed to the doctor by the insurance company; Or, a scheme such as the solatium fund scheme in respect of those injured or killed by untraceable motor vehicles.]
b—The principle of compensating a doctor for emergency care is clearly reflected by the Railway scheme of giving 10% concession in ticket to doctors so that, for this consideration, they may render any possible medical aid to passengers in emergencies.
c—The forthcoming Clinical Establishments Act, 2010, strikes at the very root of the principles laid down above and seeks to impose a mandatory legal binding, at the threat of punishment, upon all establishments (single doctors’ private OPD clinics as well as hospitals) that they must treat a patient brought in an emergency, without there being any provision for necessary fees. This might as well prove to be the straw that breaks the camel’s back. The pity is that the camel in this case is highly educated and intelligent and prides itself to be the “cream of the cream” and is highly organised in the form of an elephantine organisation called the IMA, which might as well be spelled out as Indian Morose Association. This great profession / organisation refuses to see what is written on the wall.
QUESTION—A medical colleague working in a government set up has received a legal notice alleging negligence. What should he do? Should he reply to it*? *It is said that it is better to ignore because whatever reply is given, one will be bound by it. Is this a correct approach?* *ANSWER—*The legal position is that one is not bound to reply to a notice. However, it would be wrong to ignore it. It is better to send an appropriate reply. It would be better if the reply is prepared by or in consultation with an advocate. It is true that if a complaint is filed with the concerned authority by the complainant, the reply is likely to form a part of the complaint. However, that is no reason not to send a reply. Forewarned is forearmed. If a proper reply is sent at this stage, the following benefits may follow:
1-- If the reply is of a convincing nature, there is 1-2% chance that the person may not decide to file complaint with the authority concerned.
2—The process of preparing a reply will make the doctor more aware of any weakness or lacunae in his defence which he can try to fortify while there is time.
3—If a complaint is filed in the court and the doctor receives a court notice / summon, the doctor would not be taken unawares and will be able to deal with the court case without much stress.
If the alleged negligence was committed during the course of government duties, your friend is entitled to defence by the government counsel / at government expense. It is highly likely that the government would be made a party in the case. It is advisable for him to take the following steps:
a—To give the legal notice to his boss and ask for advice / help.
b—if the government counsel prepares a reply to the notice, your friend should not sign it blindly. He should sign only after he has read it and is satisfied. Sometimes it happens that there is a conflict of interests and the hospital tries to pass off the blame to the doctor. If your friend feels that the reply is unduly favourable to the hospital / government and against the doctor, he should better engage his own counsel.
Please note that since your friend is working in a government set up, and since
*QUESTION—I am a doctor aged 45 years. I want to join LL.B. course. Is it possible in view of my age?*
*ANSWER—*
*1*-- Early this year, BCI brought in a resolution setting age limit of 20 for admission to five year LLB and that of 30 for the three year LLB course. This step was taken, ostensibly, in the interest of high standards of legal education and practice.**
2--. In the late nineties, Delhi Bar Council had made a rule that people could not enroll as advocates after 40 years age. This was challenged in Delhi High Court and was quashed.
3—Lawyers, as a community, tend to be exclusive and want to prevent others from joining the bar. This is an unhealthy trend. This will, ultimately, result in further deterioration of the law profession itself. No branch of knowledge can grow in exclusion. Inter-disciplinary growth in various fields needs to be encouraged.
4-- I don't know why lawyers are so afraid of "others" encroaching upon their "territory"? Why do they want to build exclusive monopolistic empires? Is the present fleecing and loot of the public not enough?
5-- I am an ex-professor of medicine having an LL.M. degree. I joined the Bar in 2001. My specialty is medico-legal cases. I have been pretty successful and am fulfilling a need which is beyond an ordinary advocate. So many people keep on sending me medico-legal queries and I keep on replying to them on the internet as a part of service to the society.
6--What I am doing in law related to medicine can be done by others as regards law related to engineering, commerce and other specialised fields. The interdisciplinary growth of law needs to be encouraged. That is why LLB courses have been started in IIT Kanpur and Kharagpur. I deplore the stand of the BCI.
7--The attempts by the Bar Council of India to limit the age for joining the LL.B. course are ridiculous. The attempts have been challenged:
a-- A PIL has been filed in the Bombay High Court challenging the Bar Council of India Rule (Rule 28) that states that no person shall be admitted to a 5 year LLB course if he or she is above the age of 20 and to a 3 year LLB course if above the age of 30. It has been filed by Yasmin Tavaria, a practicing advocate. According to her: “commitment to the profession and age can never be inversely related to each other and that the age of a person has no bearing on the degree of commitment with which he or she would pursue a profession.”
According to advocate Tavaria, Andhra Pradesh High Court last month (May, 2010), hearing a PIL on the same issue, stayed the operation of the BCI rule. As a result, all the colleges in the country can give admissions notwithstanding the rule, Tavaria said.
b-- Advocate Mahesh Vaswani has filed a Writ Petition in the Bombay High Court on behalf of his client Shabnam Amin Mulani, a lady cop of Mumbai Police against the newly imposed age restrictions in legal education. He has written:
8-- The Supreme Court has recently transferred to itself the 60 odd cases in various high courts regarding the age of entry to the LL.B. course.
9-- The Commissioner for Entrance Examinations, Kerala has invited applications from candidates for the entrance test to be held on 14th August for admission to the three year LLB course at Government Law Colleges, Trivandrum, Ernakulam, Thrissur and Kozhikode. There is no upper age limit for admission to the 3 year LL.B Course.**
The full news / notification inviting applications can be viewed at
10—Courts usually hold that once a student joins a course, is examined and given a degree by a proper university, the degree cannot be snatched away simply because the professional council (medical or bar council) has objection. In this particular instance, there is a very high chance that the objection itself will be struck down.
11—SUMMARY: The BCI rule regarding age limit for admission to LL.B. is flawed. It has been challenged through about 60 writ petitions in various High Courts. Andhra Pradesh High Court has stayed the BCI rule. The Supreme Court has recently transferred all the High Court petitions on this issue to itself. Many universities are going ahead with LL.B. admissions ignoring the new BCI rule. You should believe the college management and should join the LLB course.
As per news given below, the MCI has made it compulsory that “all medical graduates must register with the state medical councils wherever they are practicing”.
THE NEWS http://updates.highereducationinindia.com/2010/mci-makes-registration-mandatory-for-4178.php
MCI Makes Registration Mandatory for Doctors
THE COMMENT—
1—I do not have detailed information regarding:
a—Whether it is, at present, a proposal / proposed decision / actual decision not yet conveyed to those affected through regular channels/ an administrative decision having legal force?
b—What is the actual proposal / scheme? Will doctors registered in state A and having a registration no., say, A-123, be forced to register in state B on payment of full charges as applicable in state B, with issuance of a new registration number, say B- 456? Or, will it be a reciprocal registration on payment of nominal charges with, say, issuance of a supplementary authentication such as: A-123 (B/789)?
c—What is the provision for those with transferable jobs, especially for defence and para-defence services, who might be posted at short notice in or out of stations?
2—It is a logical move for better professional control but it must be ensured that all legal requirements are met. As per the existing MCI Act,1956, there is no requirement for multiple registrations. As per the Bar Council rules / Advocates Act, 1961, there is no requirement for multiple registration. The MCI should follow the pattern of the BCI, where an advocate is required to inform about the area of his routine practice from one state to another, without fresh registration.
QUERY—Can anyone supply me: a—Detailed information; b—Answers to quries in (1) above?
QUESTION—Doctors, both general doctors and specialists, give loose tablets to patients without disclosing their identity, even when the patient has a reaction and asks for the name of the drug. Is this ethical or legal? Is it not against patients’ rights? *
*ANSWER—*
1—The practice of a physician giving loose tablets to a patient without disclosing their identity is certainly unethical.
2—Such practice is also violative of the following regulations of the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002:
“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.
6.5 Secret Remedies: The prescribing or dispensing by a physician of secret remedial agents of which he does not know the composition, or the manufacture or promotion of their use is unethical and as such prohibited. All the drugs prescribed by a physician should always carry a proprietary formula and clear name.”
3— Such practice amounts to deficiency of service in terms of the Consumer Protection Act, 1986, where deficiency is defined as:
“(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;”
4—Such practice is violative of patients’ rights in that the American Hospital Association has included the following among the rights of the patient:
“2. The patient has the right to and is encouraged to obtain from physicians and other direct caregivers relevant, current, and understandable information concerning diagnosis, treatment, and prognosis.
Except in emergencies when the patient lacks decision-making capacity and the need for treatment is urgent, the patient is entitled to the opportunity to discuss and request information related to the specific procedures and/or treatments, the risks involved, the possible length of recuperation, and the medically reasonable alternatives and their accompanying risks and benefits.
Patients have the right to know the identity of physicians, nurses, and others involved in their care, as well as when those involved are students, residents, or other trainees. The patient also has the right to know the immediate and long-term financial implications of treatment choices, insofar as they are known. --- http://www.injuredworker.org/Library/Patient_Bill_of_Rights.htm
5—Such practice is also violative of the principle of right to information that a patient has in terms of the Charter of the Hospital patient (Luxembourg, 9 May 1979), adopted by the Hospital Committee of the European Economic Community during its Plenary Session held in Luxembourg set from the sixth to the ninth of May 1979. http://www.hope.be/07publi/publoth/Hospchart.htm
“4. The hospital patient has the right to information relevant to his situation. The best interests of the patient should be paramount in the imparting of information. Subject to this, the information given must allow the patient the fullest insight into all aspects of his situation, medical and otherwise and, on an informed basis, enable him to make his own decisions or to participate in decisions which have implications for his well-being.”
6—If a patient suffers bodily injury as a result of taking loose tablets of undisclosed nature given by a physician, he has the following remedies against the physician:
a—Compensation under the Consumer Protection Act, 1986, for injury suffered, by filing a consumer complaint;
b—Punishment to the physician for causing hurt / grievous hurt in terms of IPC 324 / 326 respectively by filing a criminal / police complaint.
4—Such practice is violative of patients’ rights in that the American Hospital Association has included the following among the rights of the patient:
“2. The patient has the right to and is encouraged to obtain from physicians and other direct caregivers relevant, current, and understandable information concerning diagnosis, treatment, and prognosis.
Except in emergencies when the patient lacks decision-making capacity and the need for treatment is urgent, the patient is entitled to the opportunity to discuss and request information related to the specific procedures and/or treatments, the risks involved, the possible length of recuperation, and the medically reasonable alternatives and their accompanying risks and benefits.
Patients have the right to know the identity of physicians, nurses, and others involved in their care, as well as when those involved are students, residents, or other trainees. The patient also has the right to know the immediate and long-term financial implications of treatment choices, insofar as they are known. --- http://www.injuredworker.org/Library/Patient_Bill_of_Rights.htm
5—Such practice is also violative of the principle of right to information that a patient has in terms of the Charter of the Hospital patient (Luxembourg, 9 May 1979), adopted by the Hospital Committee of the European Economic Community during its Plenary Session held in Luxembourg set from the sixth to the ninth of May 1979. http://www.hope.be/07publi/publoth/Hospchart.htm
“4. The hospital patient has the right to information relevant to his situation. The best interests of the patient should be paramount in the imparting of information. Subject to this, the information given must allow the patient the fullest insight into all aspects of his situation, medical and otherwise and, on an informed basis, enable him to make his own decisions or to participate in decisions which have implications for his well-being.”
6—If a patient suffers bodily injury as a result of taking loose tablets of undisclosed nature given by a physician, he has the following remedies against the physician:
a—Compensation under the Consumer Protection Act, 1986, for injury suffered, by filing a consumer complaint;
b—Punishment to the physician for causing hurt / grievous hurt in terms of IPC 324 / 326 respectively by filing a criminal / police complaint.
4—Such practice is violative of patients’ rights in that the American Hospital Association has included the following among the rights of the patient:
“2. The patient has the right to and is encouraged to obtain from physicians and other direct caregivers relevant, current, and understandable information concerning diagnosis, treatment, and prognosis.
Except in emergencies when the patient lacks decision-making capacity and the need for treatment is urgent, the patient is entitled to the opportunity to discuss and request information related to the specific procedures and/or treatments, the risks involved, the possible length of recuperation, and the medically reasonable alternatives and their accompanying risks and benefits.
Patients have the right to know the identity of physicians, nurses, and others involved in their care, as well as when those involved are students, residents, or other trainees. The patient also has the right to know the immediate and long-term financial implications of treatment choices, insofar as they are known. --- http://www.injuredworker.org/Library/Patient_Bill_of_Rights.htm
5—Such practice is also violative of the principle of right to information that a patient has in terms of the Charter of the Hospital patient (Luxembourg, 9 May 1979), adopted by the Hospital Committee of the European Economic Community during its Plenary Session held in Luxembourg set from the sixth to the ninth of May 1979. http://www.hope.be/07publi/publoth/Hospchart.htm
“4. The hospital patient has the right to information relevant to his situation. The best interests of the patient should be paramount in the imparting of information. Subject to this, the information given must allow the patient the fullest insight into all aspects of his situation, medical and otherwise and, on an informed basis, enable him to make his own decisions or to participate in decisions which have implications for his well-being.”
6—If a patient suffers bodily injury as a result of taking loose tablets of undisclosed nature given by a physician, he has the following remedies against the physician:
a—Compensation under the Consumer Protection Act, 1986, for injury suffered, by filing a consumer complaint;
b—Punishment to the physician for causing hurt / grievous hurt in terms of IPC 324 / 326 respectively by filing a criminal / police complaint.
QUESTION—I think it will be better if all doctors are registered directly with the MCI and the MCI may issue them a registration no. which would also indicate the state where they are located. Is this not possible?*
*ANSWER—*No this is not possible within the existing constitution and legislations:
1—As per the constitution, health is a state subject. That is why there are state medical councils established under specific state legislations in different states.
2—As per the present legislations, the scheme provided in the MCI Act, 1956, is that the state councils maintain a state medical register of medical practitioners and the MCI maintains an Indian Medical Register based upon the information provided by the state medical councils. The national and state medical councils have to act as per the provisions of the statute creating them. Any deviation from the procedure laid down will be illegal.
3—If the medical profession thinks a change is needed in the above scheme, it / the IMA should propose an alternate scheme to the government. Only then will the government be able to act upon the request.
QUESTION— *When a* *doctor works in two or more states at the same time, each state asks that he should be registered with the concerned state medical council. What is the legal position? What should the doctor do?
*ANSWER—*
a--The legal position is that a doctor registered with any of the state medical councils is entitled to practice medicine anywhere in India in terms of the Indian Medical Council Act, 1956. The state medical council acts making it necessary for every doctor in the state to get registered with the respective state medical council are in derogation of the IMC Act, 1956.
2—What the doctor should do is as follows:
a—If he is already in practice or service or proposes to start his own practice, he should go ahead and ignore the state medical council requirement and if the state medical council takes any action, to legally fight it. The chances are that the state medical council will not take any action because it is not empowered to do so.
b—If he is eligible for work or employment in an organisation or an agency of the government in the state and the organisation / government deny him the work or employment opportunity on the ground that he is not registered with the particular state medical council, he should file a writ petition in the state High Court against the organisation / government and the state medical council and also impleading the MCI.
*QUESTION-- Section 41 of the Clinical Establishment Bill, 2010, provides
ReplyDeletefor monetary penalty for a physician. It is possible that the physician
might have been called by the unregistered establishment in an emergency
situation. Would the refusal to attend to such call not amount to an act of
negligence on the part of the physician?*
* *
*ANSWER*—No. The reasons and background are as follows.
A--Clinical Establishment Bill, 2010, has already passed by the Lok Sabha.
Section 41 reads as follows:
“41. (1) Whosoever carries on a clinical establishment without registration
shall, on
conviction for first offence, be punishable with a monetary penalty up to
fifty thousand
rupees, for second offence with monetary penalty which may extend to two
lakh rupees
and for any subsequent offence with monetary penalty which may extend to
five lakh
rupees.
(2) Whoever knowingly serves in a clinical establishment which is not duly
registered
under this Act, shall be punishable with monetary penalty which may extend
to twenty-five
thousand rupees.”
B—It is clear that after the bill becomes an act and the same is notified,
it would be illegal for any clinical establishment to function without
registration. Associating with an illegal activity is violative of
regulation 1.9 of the Indian Medical Council (Professional conduct,
Etiquette and Ethics) Regulations, 2002, which reads as follows:
*1.9 Evasion of Legal Restrictions: *The physician shall observe the laws of
the country in regulating the practice of medicine and shall also not assist
others to evade such laws. He should be cooperative in observance and
enforcement of sanitary laws and regulations in the interest of public
health. A physician should observe the provisions of the State Acts like
Drugs and Cosmetics Act, 1940; Pharmacy Act, 1948; Narcotic Drugs and
Psychotropic substances Act, 1985; Medical Termination of Pregnancy Act,
1971; Transplantation of Human Organ Act, 1994; Mental Health Act, 1987;
Environmental Protection Act, 1986; Pre–natal Sex Determination Test Act,
1994; Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954;
Persons with Disabilities (Equal Opportunities and Full Participation) Act,
1995 and Bio-Medical Waste (Management and Handling) Rules, 1998 and such
other Acts, Rules, Regulations made by the Central/State Governments or
local Administrative Bodies or any other relevant Act relating to the
protection and promotion of public health.
**
C—It is clear that in view of regulation 1.9, no charge of negligence can
lie against a doctor.
D-- Even otherwise, a physician has no legal duty to attend to a person who,
not being already his patient, is a stranger and comes to the physician in
an emergency. This is clear from regulation 2.1.1 which states:
“2.1.1 Though a physician is not bound to treat each and every person asking
his services, he should not only be ever ready to respond to the calls of
the sick and the injured, but should be mindful of the high character of his
mission and the responsibility he discharges in the course of his
professional duties.”
It is clear that the high moral expectation on the part of the physician “to
respond to the calls of the sick and the injured” applies only to those
situations where the patient comes to him directly “asking his services”. It
cannot be extended to an illegal set up admitting patients illegally and
then sending a call to a physician to come in an emergency. If the physician
responds to such call made by an unregistered clinical establishment, he
would be committing an offence under section 41 (2) and would be liable for
the consequences.
M C Gupta
MD (Medicine), LL.M.
*QUESTION-- A radiologist owns and runs a diagnostic centre where specimens
ReplyDeleteare collected for testing. The actual testing is outsourced. He then issues
the lab reports on his own letter head. Is it legally acceptable?*
* *
*ANSWER—*No. It is not legally acceptable. The practice of issuing
laboratory test reports by a radiologist under his signature amounts to
practicing the specialty of pathology and thereby claiming that he is a
pathologist. This is violative of regulation 7.20 of the Indian Medical
Council (Professional conduct, Etiquette and Ethics) Regulations, 2002,
which reads as follows:
*“7.20* A Physician shall not claim to be specialist unless he has a special
qualification in that branch.”
----M C Gupta
D—As per the above definition, the following would logically fall under the
ReplyDeletetitle "clinical establishment":
a—Hospitals, nursing homes, dispensaries, OPDs, polyclinics, single doctor
clinics etc. maintained or owned by doctors qualified in modern medicine and
registered with the MCI.
b-- Same as above in respect of other recognised systems of medicine (Ayurveda,
Siddha, Unani, Homeopathy and Yoga & Naturopathy).
c—Acupuncture clinics maintained by doctors qualified in modern medicine and
registered with the MCI.
d—Dental clinics etc. maintained or owned by dentists qualified in dentistry
and registered with the DCI.
e-Physiotherapy, occupational therapy, speech therapy clinics etc.
f—Optometry and dental hygiene centres.
g—Clinics / service centres maintained by nurses and midwives
h—Psychotherapy, hypnotherapy and clinical psychology clinics.
i—Diagnostic laboratories.
j—Radiological diagnostic, ultrasound and imaging centres
k—Ayurvedic Panch-karma centres
l—Obesity treatment / slimming centres
The above are the main examples. In addition to the above, the government
may include other categories.
E—In view of the above, your contention does not seem to be correct.
M C Gupta
MD (Medicine), LL.M.
Ex-Professor and Dean
Practicing advocate
mcgupta44@gmail.com
15 May 2010 **
*QUESTION—I think that the purpose of the so called Clinical Establishment
ReplyDeleteBill, 2010, is basically to regulate allopathic doctors and particularly the
hospitals. What is your opinion?*
* *
*ANSWER—*
A—There is nothing in the preamble of the bill to give such impression.
The preamble of the *Clinical Establishment Bill, 2010, which has already
been passed by the Lok Sabha, reads as follows:*
*“*A BILL *to provide for the registration and regulation of clinical
establishments in the country and for matters connected therewith or
incidental thereto.*
WHEREAS, it is considered expedient to provide for the registration and
regulation of clinical establishments with a view to prescribe minimum
standards of facilities and services which may be provided by them so that
mandate of article 47 of the Constitution for improvement in public health
may be achieved. …..”
B—The purpose of a bill or act is usually stated in its preamble. In case of
doubt or ambiguity, the courts do not think but rather interpret from the
preamble the purpose of the legislation. A basic rule in interpretation of
statutes is that a statute has to be interpreted by placing an ordinary
grammatical meaning upon the words. This is called the literal rule.
Following this approach, it is clear that the Bill has nothing to do
specifically with the allopathic system of medicine or its practitioners. As
a matter of fact, the words ‘allopathy’ or ‘allopathic’ or ‘modern medicine’
do not find a place at all in the bill.
C—The term clinical establishment is defined in clause 2(c) as follows:
"
(*c*) "clinical establishment" means—
(*i*) a hospital, maternity home, nursing home, dispensary, clinic,
sanatorium or an institution by whatever name called that offers services,
facilities requiring diagnosis, treatment or care for illness, injury,
deformity, abnormality or pregnancy in any recognised system of medicine
established and administered or maintained by any person or body of persons,
whether incorporated or not; or
(*ii*) a place established as an independent entity or part of an
establishment referred to in sub-clause (*i*), in connection with the
diagnosis or treatment of diseases where pathological, bacteriological,
genetic, radiological, chemical, biological investigations or other
diagnostic or investigative services with the aid of laboratory or other
medical equipment, are usually carried on, established and administered or
maintained by any person or body of persons, whether incorporated or not,
and shall include a clinical establishment owned, controlled or managed by—
(*a*) the Government or a department of the Government;
(*b*) a trust, whether public or private;
(*c*) a corporation (including a society) registered under a Central,
Provincial or State Act, whether or not owned by the Government;
(*d*) a local authority; and
(*e*) a single doctor,
but, does not include the clinical establishments owned, controlled or
managed by the Armed Forces.
*Explanation.— *For the purpose of this clause "Armed Forces" means the
forces constituted under the Army Act, 1950, the Air Force Act, 1950 and the
Navy Act, 1957;”
CONTD ...
The looming danger of the Clinical Establishment Bill, 2010
ReplyDeleteA--The Clinical Establishment Bill, 2010, has been passed by the Lok Sabha
without any discussion. The only remaining steps are its passage by the
Rajya Sabha and the President's assent. Then it will be notified and will
become law.
B—The Bill contains some unfair and unacceptable provisions. The most
objectionable is section 12(2), which reads:
“(*2*) The clinical establishment shall undertake to provide within the
staff and facilities available, such medical examination and treatment as
may be required to stabilise the emergency medical condition of any
individual who comes or is brought to such clinical establishment.”
The words “to stabilize above are defined in section 2(o) as follows:
(“*o*) "to stabilise (with its grammatical variations and cognate
expressions)" means, with respect to an emergency medical condition
specified in clause (*d*), to provide such medical treatment of the
condition as may be necessary to assure, within reasonable medical
probability, that no material deterioration of the condition is likely to
result from or occur during the transfer of the individual from a clinical
establishment.”
C--It has been my sad experience that doctors keep on meekly tolerating
injustice that can be legally challenged. They keep on lamenting their fate.
D—I suggest as follows:
ONE--The IMA should immediately deliberate upon the Bill and identify the
undesirable / detrimental aspects in the Bill and send a proper and legally
drafted representation to;
President
Vice president [Chairman, Rajya Sabha]
Deputy Speaker, Rajya Sabhaa
Prime Minister
Health Minister
Law Minister
Leader of the opposition
CONTD ...
The representation may contain, inter alia, the following points:
ReplyDelete1—On the whole, the IMA supports the purpose of the Bill.
2—The bill needs the following changes:
a—Single doctor establishments should be exempt from the provisions of
section 12(2).
b—Section 12(2) imposes a duty without a corresponding right, which is
against legal principles. If the government imposes a duty of service on a
private party, it has to be linked with a corresponding duty of payment of
consideration for the services rendered. The Bill needs to have a clear
provision for adequate and reasonable payment to the clinical establishment
for the service rendered. The right to health being a fundamental right of a
citizen, it is the duty of the government to make adequate arrangements for
fulfilment of this right through state resources. If a private hospital is
made to provide services, this cannot be free and must be compensated.
c—A time limit needs to be provided in section 12(2) read with section 2(o).
This can be 24 hours. Within 24 hours, a nearby government hospital should
be legally bound to admit the patient transferred from the private hospital.
d—Section 2(o) needs to be modified. [The IMA may suggest a modifieds
version].
e—The major stake holders in this Bill are the doctors but they have been
totally ignored. This is undemocratic. Views from various medical groups /
associaions / institutes / councils etc. need to be ascertained by inviting
comments from them.
f—The Bill was passed by the Lok Sabha in a matter of minutes without any
discussion. It was the duty of the elected representatives to deliberate
upon the pros and cons of the Bill. The Bill should not be allowed to clear
the next stage without wide and meaningful consultations
3—The various steps for the enactment of the Bill [passage in Rajya Sabha;
President’s assent; notification] should be held in abeyance till the
repercussions of the Bill have been analysed in depth and the suggestions
and comments received have been duly considered.
4—The government may give a reply to this representation within a month.
TWO—If no satisfactory reply is received within a month, a writ petition
should be filed in the Delhi High Court.
THREE—Before the writ petition is filed, the IMA should start a campaign
against the unacceptable aspects of the Bill.
It is surprising that the IMA has not taken any action so far. How can we
then blame the government. The government is naturally bound to assume that
the IMA / doctors have no problem with this Bill!
M C Gupta
17 may 2010
--
QUESTION—What effect will the new **Clinical Establishment Bill, 2010, have
ReplyDeleteon Karnataka which already has a **Karnataka Private Medical Establishments
Act, 2007**?***
* *
*ANSWER—*
**
A—On its own, the Clinical Establishment Bill, 2010, once it becomes an Act,
will have no effect on Karnataka since health is a state subject as per the
Seventh schedule VII, List II, Entry 6 titled “Public health and sanitation,
hospitals and dispensaries”
B—Karanataka would be free to adopt the new Clinical Establishment Bill /
Act, 2010, in toto or to modify the existing state act on the lines of the
new act.
C—If Karnataka adopts the new Act in full or part, the following effects
might occur:
1—Government establishments would be brought within the ambit of the Act.
That would be desirable.
2—Section 12(2) read with section 2(o) of the new act may be made applicable
in the state. This will be undesirable. These sections state as follows:
Section 2(o): (*o*) "to stabilise (with its grammatical variations and
cognate expressions)" means, with respect to an emergency medical condition
specified in clause (*d*), to provide such medical treatment of the
condition as may be necessary to assure, within reasonable medical
probability, that no material deterioration of the condition is likely to
result from or occur during the transfer of the individual from a clinical
establishment.
Section 12(2): (*2*) The clinical establishment shall undertake to provide
within the staff and facilities available, such medical examination and
treatment as may be required to stabilise the emergency medical condition of
any individual who comes or is brought to such clinical establishment.
M C Gupta
MD (Medicine), LL.M.
Ex-Professor and Dean
Practicing advocate
mcgupta44@gmail.com
17 May 2010
F—The hospital should be aware of the basic rule of law that courts are not
ReplyDeleteto sit in judgment on matters of technical or professional or medical
nature. They are to go by expert opinion. The experts would scrutinize the
case sheet. It is important to keep medical notes carefully. It is my sad
experience that the medical records in most small hospitals / nursing homes
are scanty and of poor quality. A charge of negligence can be refuted if
there is proper management of the patient as per principles of medicine and
the code of ethics within the facilities expected to be available at the
hospital.
G—As regards your statement, “A small hospital may not have the personnel /
facilities for proper treatment and may, thereby, be accused of negligence”,
the hospital cannot be accused of negligence if the alleged negligence is
lack of “the personnel / facilities for proper treatment” even though the
staff and facilities are in accordance with the requirements of the Act. If
the alleged negligence pertains to negligent acts of the staff that was
available, it cannot be condoned.
M C Gupta
MD (Medicine), LL.M.
Ex-Professor and Dean
Practicing advocate
*How to avoid allegations of negligence when a small hospital is forced to
ReplyDeletetreat emergency patients under the Clinical Establishments Act?*
*QUESTION—The Clinical Establishment Bill / Act, 2010, makes it compulsory
for a hospital to admit and treat a patient in emergency till his condition
is stabilized. A small hospital may not have the personnel / facilities for
proper treatment and may, thereby, be accused of negligence. What should the
hospitals do in such a situation?*
* *
*ANSWER*—The hospital should do as follows:
A—The hospital administrator and doctors should be aware of and should
understand various provisions of the Clinical Establishment Bill / Act,
2010; the Indian Medical Council (Professional conduct, Etiquette and
Ethics) Regulations, 2002; Consumer Protection Act, 1986, and other health
legislations. It is advisable that a semesterly CME program in “health and
law” should be organised for professional staff.
B—The hospital should ensure that it fulfills at all times the requirements
of the Act as per the terms and conditions under which it is registered.
Having less staff or equipment or facilities than what has been agreed can
certainly lead to an allegation of negligence / deficiency. The equipment
should be under a maintenance service contract and record of its servicing
should be kept. Professional staff should have necessary qualifications and
licence. It should be checked that they are not fake. Its doctors should
always conform to the Indian Medical Council (Professional conduct,
Etiquette and Ethics) Regulations, 2002.
C—The hospital and the staff should be aware of the mandate for emergency
treatment given in the following sections of the Bill:
Section 2(d): (*d*) "emergency medical condition" means a medical condition
manifesting itself by acute symptoms of sufficient severity (including
severe pain) of such a nature that he absence of immediate medical attention
could reasonably be expected to result in—
(*i*) placing the health of the individual or, with respect to a pregnant
women, the health of the woman or her unborn child, in serious jeopardy; or
(*ii*) serious impairtment to bodily functions; or
(*iii*) serious dysfunction of any organ or part of a body;
Section 2(o): (*o*) "to stabilise (with its grammatical variations and
cognate expressions)" means, with respect to an emergency medical condition
specified in clause (*d*), to provide such medical treatment of the
condition as may be necessary to assure, within reasonable medical
probability, that no material deterioration of the condition is likely to
result from or occur during the transfer of the individual from a clinical
establishment.
Section 12(2): (*2*) The clinical establishment shall undertake to provide
within the staff and facilities available, such medical examination and
treatment as may be required to stabilise the emergency medical condition of
any individual who comes or is brought to such clinical establishment.
D— The hospital and the staff should note that the key words in section
12(2) are: “The clinical establishment shall undertake to provide within the
staff and facilities available, such medical examination and treatment as
may be…………..”. One has to give due regard to the “staff and facilities
available”. The staff and facilities available should be commensurate with
that committed at the time of registration.
E—The hospital should ensure that the concerned consultant(s) [preferably a
board of 2-3 doctors] should keep a written record of the progress of an
emergency medical condition and its stabilization as per the above
definition, and whether the staff and facilities available are adequate and,
if not so, then whether the patient is advised for transfer elsewhere and
whether he is fit for transfer.
CONTD ...
Does organizing a health camp violate MCI regulations?
ReplyDeleteQUESTION—I am an MBBS doctor practicing in a village. The death
anniversary of my grandfather is approaching. I want to organise a
health camp for villagers on this occasion. Some pharmaceutical
companies have agreed to provide free medicines, appliances and
diagnostic facilities on this occasion. Can I go ahead without
breaking any MCI rules?
ANSWER—
A--The rules you have in mind is probably Regulation 6.8.1 of the
Indian Medical Council (Professional conduct, Etiquette and Ethics)
Regulations, 2002, which 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—It appears that the proposed activity does not involve accepting any
gifts, travel facilities, hospitality or cash or monetary grants by
you. If this is so, you will not be violating regulation 6.8.1 or any
other regulation.
M C Gupta
MD (Medicine), LL.M.
What is the legal limit for stocking of medicines by a clinic or nursing home?
ReplyDeleteQUESTION—Do practicing doctors in clinics or nursing homes need a
licence to stock drugs for use of their patients? Is there any stock
limit for this as per the Pharmacy Act or the Drugs And Cosmetics Act?
ANSWER—
1--The Pharmacy Act applies to pharmacists, not doctors.
2--The Drugs and Cosmetics Act, 1940, is “An Act to regulate the
import, manufacture, distribution and sale of drugs”. Thus basically,
it does not apply to clinics and nursing homes. There is nothing in
this Act related to the query you have posed.
3—What applies to doctors is the 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.”
The point to be noted is that a doctor in a clinic or nursing home
does not sell the medicine to the patient. Rather, he supplies it.
4—In view of the above, there is no limit prescribed for stocking a
drug meant to be supplied to the patients treated at the clinic or the
nursing home. It is expected that reasonable quantities would be
stocked. What is reasonable would depend upon the actual situation.
M C Gupta
MD (Medicine), LL.M.
Ex-Professor and Dean
Practicing advocate
QUESTION—Can a doctor registered with a medical council in India on
ReplyDeletethe basis of his MBBS degree practice as a specialist in India on the
basis of specialist qualifications acquired in USA?
ANSWER—
1—Being registered with the medical council, any doctor can practice
anywhere in India.
2—Practicing as a specialist is covered by 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.”
3—The list of qualifications from USA and other countries that are
recognised by the MCI is given in the schedule(s) to the Indian
Medical Council Act, 1956.
4—If somebody has an American specialist qualification that is not
included in the schedule but is employed in government service on the
basis of such qualification, his employment can be challenged in a
court and the courts may quash the appointment. There are court
judgments on these lines.
5-- If somebody has an American specialist qualification that is not
included in the schedule but he is practicing or is employed in a
private hospital on the basis of such qualification, his practice or
employment can still be challenged legally but such challenge is rare.
Even if challenged, it may be possible to refute the allegation of
medical negligence or violation of regulation 7.20 effectively.
M C Gupta
MD (Medicine), LL.M.
Ex-Professor and Dean
Practicing advocate
mcgupta44@gmail.com
Can a person who has been a resident in ophthalmology for 3 years but
ReplyDeletehas no qualification in the subject practice as an ophthalmologist?
QUESTION--A doctor passed DNB part one, got admission to DNB part two
and completed three yeasr of residency in ophthalmology. He has not
yet cleared the final examination for DNB (Ophthalmology). Can he
start his private practice and perform cataract and other eye
surgeries?
ANSWER—No. Such a person would be violating 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.”
As a result, he would be liable to civil and criminal prosecution
under various laws, including the Consumer Protection Act, 1986.
M C Gupta
MD (Medicine), LL.M.
Ex-Professor and Dean
Practicing advocate
mcgupta44@gmail.com
12 June 2010
The legal aspects of the concept of nurse practitioners.
ReplyDeleteQUESTION--Several public health programs are looking at the
possibility of nurse practitioners / nurse-led clinics. Can a nurse
give a prescription to a patient on her own as per law?
ANSWER—No. As per law, a nurse is not competent to prescribe a
medicine to a patient. Prescription is based upon diagnosis and the
diagnosis is based upon the clinical history, physical examination and
investigations as necessary. All the prior steps before issuing a
prescription fall in the medical domain. Prescription is not merely
the act of writing the names of medicines on a piece of paper. It
involves deep medical knowledge and application of mind, which, if not
applied, can result in civil and criminal penalties for medical
negligence. Law draws a clear distinction between the jobs of a doctor
and a nurse. This is clear from there being two different statutory
councils—the MCI and the Nursing Council of India. Nurse practitioners
in India can come into existence only after appropriate legislation is
passed for the same.
M C Gupta
MD (Medicine), LL.M.
Ex-Professor and Dean
Practicing advocate
mcgupta44@gmail.com
12 June 2010
MISCELLANEOUS—
ReplyDelete1—Only MBBS doctors should be employed in the hospital.
2—A written undertaking should be taken from the patient and two
relatives that they would not indulge in violence and that any loss to
hospital property as a result of violence caused by them would be
recoverable from them.
3—Hospital records in respect of patients (case sheets) should be properly kept.
4—Treating doctors should spend sufficient time with the patients and
relatives to answer their doubts and queries.
5—The consent form should not be got signed in a cursory manner. It
should be an informed consent in the true sense.
6—No false assurances, even verbal, should be given to patients.
7—Patients should be clearly and documentedly told that they are free
to shift their patient to any other hospital at any time.
8—Prompt police complaints should be made against those who commit
violence. Video cameras should be installed at a few places to record
the photographs and voice of any bad elements who commit violence.
This would greatly help in making a police complaint and pursuing it.
NOTE—
Some nursing homes may be small nursing homes with only a few beds.
However, all the above measures need to be taken for every nursing
home, big or small. The smaller the hospital, the more the chances of
violence against it.
M C Gupta
MD (Medicine), LL.M.
Ex-Professor and Dean
Practicing advocate
mcgupta44@gmail.com
12 June 2010
What should the nursing homes do to prevent and tackle instances of violence?
ReplyDeleteQUESTION—Attacks on nursing homes are getting more and more frequent.
What should the nursing home owners do?
ANSWER—
The nursing homes should do the following:
A—They should take steps to minimise the possibility of such attacks.
Examples of such steps are:
1- The Indian Medical Council (Professional conduct, Etiquette and
Ethics) Regulations, 2002, should be strictly complied with.
2—A notice should be prominently displaced providing information to
the public about the actions that an aggrieved patient may take. Such
information may include:
a—Name and mobile telephone number of the person / doctor who is
officially assigned the duty of attending patient complaints /
emergencies on 24 hour basis.
b--Name of the person in charge and the members of the “Patients
Grievance Redressal Committee” of the hospital or nursing home
concerned and the time limit [say, 48 hours] during which the
Committee would take initial necessary action;
c-- Name and address of the local IMA “Patients Grievance Cell”, if
such a cell exists;
d—Name and address of the state medical council;
e-- Name and address of the District Consumer Forum.
3—The following information should also be prominently displayed:
a—Schedule of hospital charges;
b—Names, qualifications and medical council registration numbers of all doctors.
B—They should buy a hospital professional indemnity policy through a
legal risk cover company. While choosing the legal risk cover company,
they should choose that company whose terms and conditions include a
written clause that the company will provide legal services in
connection with criminal / police complaints related to violence
against the hospital.
C—They should organise a collective nursing home defence mechanism
through the local IMA. If this is not possible, a few nursing homes
should come together on their own to form such a joint mechanism. Such
joint defence mechanism, JDM, would do the following:
1—It would collect fees from members and keep proper accounts;
2—It would provide the following services to the members:
a—Liaising with the police;
b-- Organising joint seminars on the issues related to nursing home
protection. The local police officers; CMO; DM; media and some persons
from the legal field, if possible the magistrate or sessions judge,
should be invited on these occasions and they should be requested to
express their views.
c—Engaging the services of an advocate on the criminal side to act as
a standing counsel for the member nursing homes for any legal help at
times of violence.
d—Engaging the services of a security agency to provide security cover
in normal times as well, additionally, in emergencies, to the member
nursing homes.
D—The cost of the JDM incurred by the member nursing homes should be
recovered, in part or full, as appropriate, from the patients by
adding an item in the bill, such as, “Protection against violence
charges”. Such charges should be levied in a transparent manner and
should be supported by proper accounting procedures. The consent form
signed by the patient at the time of admission should clearly state
that the signatory consents to pay the “hospital patients protection
charges”.
CONTD ...
QUESTION—Are there sufficient legal grounds for doctors to oppose the
ReplyDeleteClinical Establishment Bill / Act, 2010?
ANSWER—The Bill has already been passed by the Lok Sabha. It may be
passed by the Rajya Sabha soon. Doctors need to move the courts to
protect their fundamental rights which are sought to be infringed by
the proposed Bill. It is true that if the courts are petitioned
against violation of fundamental rights even after the legislation has
come into force, the same can still be struck down. However, it is
better to nip the evil in the bud. Once it becomes a law, the courts,
even if they admit the writ petition against it, may not grant stay
against its operation and it may continue to be in force while the
litigation is pending. The real danger is that if doctors are not
concerned now, when the attack is being openly planned against them,
they are unlikely to protest when the attack is actually made. As a
result, what is likely is that they will be further emasculated and
will wail and whine and cry even more, with no effect.
The main objection is to Section 12(2) read with section 2(o) of the
Bill. These sections state as follows:
”Section 2(o): "to stabilise (with its grammatical variations and
cognate expressions)" means, with respect to an emergency medical
condition specified in clause (d), to provide such medical treatment
of the condition as may be necessary to assure, within reasonable
medical probability, that no material deterioration of the condition
is likely to result from or occur during the transfer of the
individual from a clinical establishment.
Section 12(2): (2) The clinical establishment shall undertake to
provide within the staff and facilities available, such medical
examination and treatment as may be required to stabilise the
emergency medical condition of any individual who comes or is brought
to such clinical establishment”.
CONTD ...
...
ReplyDeleteThe plain meaning of the above is that if a patient comes to the
hospital at any time with myocardial infarction, strangulated hernia,
ectopic pregnancy, appendicular abscess, peritonitis, stab injury,
fracture hip, fetal distress in a full term pregnant woman needing
Caesarian section, acute glomerulonephritis or retention of urine
etc., all of which need active, immediate, costly surgery or other
intervention, the hospital would have to provide “such medical
treatment of the condition as may be necessary to assure, within
reasonable medical probability, that no material deterioration of the
condition is likely to result from or occur during the transfer of the
individual from a clinical establishment”. There is no mention in the
Bill about three things: Who will pay for the treatment? Where will
the patient be transferred? Who will pay for the cost of transfer? All
doctors know, in actual practice, that the government hospitals will
not take the patient saying they have no bed vacant; the private
hospitals will not take in the patient who is unlikely to pay; the
patient would refuse to pay even the cost of transfer and will
threaten to sue the hospital under the “Clinical Establishment Act,
2010” if the condition of the patient suffers!
The fundamental rights of the doctors that will be violated are those
granted under articles 19 and 21.
Under article 19(g), all citizens have a fundamental right to “to
practise any profession, or to carry on any occupation, trade or
business”. Practising any profession or carrying out any occupation,
trade or business means doing so for profit and not for charity.
Article 21 specifically states that “No person shall be deprived of
his life or personal liberty except according to procedure established
by law”. The Supreme Court has held in various judgments that right to
life includes right to earn a living.
Thus the proposed Bill restricts the right to earn and to practice the
profession freely in order to earn the wherewithal. Besides, the
proposed Bill is violative of the basic legal principle that there
cannot be a duty without a corresponding right. The proposed Bill
imposes a duty to provide costly treatment without any provision for
paying the cost. The citizens have a fundamental right to health as
held by the Supreme Court in its interpretation of the right to life
under article 21. This right to health is against the government. It
is the duty of the government to ensure that everybody’s health is
protected. This duty cannot be passed on to other citizens / doctors
by the clever and colourable device of the proposed Bill. This amounts
to robbing Peter to pay Paul.
M C Gupta
MD (Medicine), LL.M.
Ex-Professor and Dean
Practicing advocate
mcgupta44@gmail.com
17 June 2010
Permission for performing autopsy given to MBBS doctors but denied to
ReplyDeletemedical colleges.
QUESTION—The government of Uttar Pradesh has not granted permission
for doing autopsies in government medical colleges while the autopsies
are routinely being carried out by MBBS doctors employed in the
Provincial Medical Service in UP. What should be done?
ANSWER—The situation described is unreasonable, unjust, unscientific
and against public interest. Expert legal opinion should be obtained
about possible remedy. This should preferably be done by an
association such as the following:
--An association of forensic medicine specialists;
-- An association of medical teachers;
--IMA.
--Resident Doctors’ Association
--Medical Students’ Association
M C Gupta
MD (Medicine), LL.M.
Ex-Professor and Dean
Practicing advocate
mcgupta44@gmail.com
19 June 2010
Please find enclosed my comments on the white paper prepared by the
ReplyDeleteIMA on the Clinical Establishments Bill, 2010.
COMMENTS
A--This is a good attempt.
B—A vital lacuna is lack of any reference to Section 12(2) read with
section 2(o) of the Bill as explained below:
1- These are the most offending sections and read as follows:
”Section 2(o): "to stabilise (with its grammatical variations and
cognate expressions)" means, with respect to an emergency medical
condition specified in clause (d), to provide such medical treatment
of the condition as may be necessary to assure, within reasonable
medical probability, that no material deterioration of the condition
is likely to result from or occur during the transfer of the
individual from a clinical establishment.
Section 12(2): (2) The clinical establishment shall undertake to
provide within the staff and facilities available, such medical
examination and treatment as may be required to stabilise the
emergency medical condition of any individual who comes or is brought
to such clinical establishment”.
2--The plain meaning of the above is that if a patient comes to the
hospital at any time with myocardial infarction, strangulated hernia,
ectopic pregnancy, appendicular abscess, perforated intestine,
peritonitis, stab injury, burns, fracture hip, fetal distress in a
full term pregnant woman needing Caesarian section, acute
glomerulonephritis or retention of urine etc., all of which need
active, immediate, costly surgery or other intervention, the hospital
would have to provide “such medical treatment of the condition as may
be necessary to assure, within reasonable medical probability, that no
material deterioration of the condition is likely to result from or
occur during the transfer of the individual from a clinical
establishment”. There is no mention in the Bill about three things:
Who will pay for the treatment? Where will the patient be transferred?
Who will pay for the cost of transfer? All doctors know, in actual
practice, that the government hospitals will not take the patient
saying they have no bed vacant; the private hospitals will not take in
the patient who is unlikely to pay; the patient would refuse to pay
even the cost of transfer and will threaten to sue the hospital under
the “Clinical Establishment Act, 2010” if the condition of the patient
suffers! Please note that it will be no defence that the hospital did
not charge any fees. The patient will still be entitled to sue the
hospital under the Consumer Protection Act for which the patient need
not engage an advocate or incur any expenses.
CONTD ...
3--The proposed Act violates the fundamental right granted under
ReplyDeletearticle 21. Article 21 reads “No person shall be deprived of his life
or personal liberty except according to procedure established by law”.
The Supreme Court has held in various judgments that right to life
includes right to earn a living. The owner of a hospital cannot be
deprived of his right to earn a living by forcing him to indulge in
charitable work.
4--The proposed Act violates the fundamental right granted under
article 19(g), under which all citizens have a fundamental right to
“to practise any profession, or to carry on any occupation, trade or
business”. Practising any profession or carrying out any occupation,
trade or business means doing so for profit and not for charity. The
proposed Bill restricts the right to earn and to practice the
profession freely in order to earn the wherewithal.
5—It is true that restrictions can be imposed upon a fundamental
freedoms granted under article 19 as long as the restrictions so
imposed are reasonable. It is submitted that the fundamental right to
practice medical profession and thereby earn one’s living is sought to
be unreasonably restricted by forcing a doctor / clinical
establishment to provide treatment on a charitable basis. This would
be analogous to passing a Legal Establishments Act and thereby forcing
senior advocates like Sh. Ram Jethamalani and Sh. Arun Jaitley to
provide free legal services to whosoever happens to ring their door
bell for arguing their case and securing for them a bail in a murder
or rape case. The parallel in the case of legal aid is the legal aid
cells established by the government at state expense. The same
principle ought to be followed as regards medical aid. There cannot be
different yardsticks for different professions or professionals.
6- The proposed Act is violative of existing laws. Regulation 2.1.1 of
the Indian Medical Council (Professional conduct, Etiquette and
Ethics) Regulations, 2002, clearly states that “a physician is not
bound to treat each and every person asking his services”. The
proposed Act hits at the very roots of professional freedom by making
it obligatory for a doctor / hospital to treat each and every person
asking his services in the garb of emergency treatment. The full text
of Regulation 2.1.1 is as follows:
“2.1.1 Though a physician is not bound to treat each and every person
asking his services, he should not only be ever ready to respond to
the calls of the sick and the injured, but should be mindful of the
high character of his mission and the responsibility he discharges in
the course of his professional duties. In his treatment, he should
never forget that the health and the lives of those entrusted to his
care depend on his skill and attention. A physician should endeavour
to add to the comfort of the sick by making his visits at the hour
indicated to the patients. A physician advising a patient to seek
service of another physician is acceptable, however, in case of
emergency a physician must treat the patient. No physician shall
arbitrarily refuse treatment to a patient. However for good reason,
when a patient is suffering from an ailment which is not within the
range of experience of the treating physician, the physician may
refuse treatment and refer the patient to another physician.”
7--The proposed Act is violative of the basic legal principle that
ReplyDeletethere cannot be a duty without a corresponding right. The proposed
Bill imposes a duty to provide costly treatment without any provision
for paying the cost. The citizens have a fundamental right to health
as held by the Supreme Court in its interpretation of the right to
life under article 21. This right to health is against the government.
It is the duty of the government to ensure that everybody’s health is
protected. This duty cannot be passed on to other citizens / doctors
by the clever and colourable device of the proposed Bill. This amounts
to robbing Peter to pay Paul.
C—Many laws are mentioned without citing the year of the concerned legislation.
D—There are some serious editing blunders. “Executer” is used for
“Executive”. “Tangential” is used for “Substantial”. There are some
other editing gaps also.
M C Gupta
25 June 2010
QUESTION—Who can issue a valid disability certificate? Can a
ReplyDeletecertificate be issued by any private doctor or nursing home where the
patient was treated?
ANSWER—
1--The answer to this question depends upon the purpose for which the
certificate has to be valid.
2—If the purpose is to claim compensation for disability caused by
accident, a certificate issued by the treating doctor or nursing home
certifying that the patient was treated for the specified accidental
injury and that, as a result of the injury, the patient has been
rendered disabled in the manner specified may be sufficient to form a
basis for claiming compensation in general. (However, the exact
quantification of the degree of disability in terms of the Persons
With Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995, will certainly help in adjudicating upon the
amount of compensation claimed).
3-- If the purpose is to claim compensation for disability caused by
alleged medical negligence, a certificate / expert opinion issued by
any doctor qualified in the specialty concerned, to the effect that
the treatment was negligent and resulted in disability would be
sufficient to reasonably claim negligence and compensation. (However,
the exact quantification of the degree of disability in terms of the
Persons With Disabilities (Equal Opportunities, Protection of Rights
and Full Participation) Act, 1995, will certainly help in adjudicating
upon the amount of compensation claimed).
4---- If the purpose is to get a job reserved for Persons with
Disabilities out of the 3% quota in terms of the Persons With
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995, it is mandatory that the certificate should
be issued by a "medical authority" as defined in the Act, which means
“any hospital or institution specified for the purposes of this Act by
notification by the appropriate Government”.
5—The “the Persons with Disabilities (Equal Opportunities, Protection
of Rights and Full Participation) Rules, 1996” further state as
follows:
“ Authorities to give disability Certificate. - (1) A Disability
Certificate shall be issued by a Medical Board duly constituted by the
Central and the State Government. (2) The State Government may
constitute a Medical Board consisting of at least three members out of
which at least one shall be a specialist in the particular field for
assessing locomotor/visual including low vision/hearing and speech
disability, mental retardation and leprosy cured, as the case may be”.
M C Gupta
MD (Medicine), LL.M.
Ex-Professor and Dean
Practicing advocate
mcgupta44@gmail.com
25 June 2010
Who should inform the police about an MLC—the small dispensary or the
ReplyDeletereferred hospital?*
**
*QUESTION—If a medico-legal case comes to a small dispensary/primary care
doctor who renders necessary first aid and refers the patient to a hospital
without loss of time, will he or the hospital be responsible for informing
the police?*
* *
*ANSWER—*The responsibility lies squarely upon the first person who comes to
know about the case. It is immaterial whether it is a small dispensary or a
primary care doctor.
M C Gupta
MD (Medicine), LL.M.
Ex-Professor and Dean
Practicing advocate
mcgupta44@gmail.com
26 June 2010 **
If an assistant professor of medicine has not taken theory classes in
ReplyDeletemedicine, can he be eligible for the post of associate professor?
*
**
*QUESTION--**Faculty recruitment in Medical Colleges begins even before the
LOI (Letter of intent), while the first batch of MBBS students is admitted
after the LOP (Letter of permission). In such a situation, if a person
joined as assistant professor of medicine in October 2005 and the first
batch was admitted in July 2006 and theory classes in medicine started in
January 2008 as per MCI pattern, and the concerned faculty member resigned
from his job in Dec 2007 (after an experience of 2 years and 3 months) and
joined again in a new college being established before LOI, and again gained
experience of 2 years and 3 months, and has also published two research
papers in indexed journals in the meantime, then will he be legally eligible
to become Associate Professor like any other faculty member in a medical
college, keeping in mind the fact that during his tenure of Assistant
Professor he has not taken any theory class?*
**
*ANSWER—*Whether he would be legally eligible or not would depend upon
detailed legal scrutiny of concerned rules and documents. There cannot be a
casual answer to a legal question. However, the following needs to be borne
in mind:
1—If somebody is appointed and paid as an assistant professor of medicine,
he is an assistant professor of medicine. An assistant professor of medicine
is expected to perform three functions: teaching (he was teaching students
during their clinical postings over the first three semesters. He was also
probably designing, in advance, the teaching curriculum for teaching of
medicine to the fourth semester. Curriculum designing is very much a part of
teaching,); patient care (he was obviously treating patients); and, research
(he has, admittedly, carried out and published his research). So he has
fully performed the various functions he was supposed to carry out as an
assistant professor of medicine. Hence he would be eligible for appointment
as Associate Professor if he fulfils the requirements.
2—If somebody is eligible for a post, he may or may not be selected.. If he
is selected by a committee of experts, he is obviously worth it.
M C Gupta
MD (Medicine), LL.M.
Ex-Professor and Dean
Practicing advocate
mcgupta44@gmail.com
27 June 2010 **
QUESTION—**Three years teaching experience is mandatory** **for appointment
ReplyDeleteas Assistant Professor as per rules. Those who pass MD are given the benefit
of considering their duties towards training undergraduate medical students
in their capacity as tutor, demonstrator or resident towards teaching
experience. Such benefit is given even to those who have got their MD from
institutions where there is no MBBS course, such as the PGIMER, Chandigarh.
Is this legally correct?*
**
*ANSWER*—As per the facts given by you, it is certainly illegal. If these
facts are correct, no court will uphold this illegal practice. The remedy
can be sought by a writ petition in the high court. However, before taking
the legal route, one must carefully study the documents concerned. I won’t
be surprised if the so called mandatory requirement states that the
candidate must have “three years teaching or research experience”. The 3
years’ experience of research during the period of the MD course would then
qualify towards eligibility.
M C Gupta
MD (Medicine), LL.M.
Ex-Professor and Dean
Practicing advocate
mcgupta44@gmail.com
27 June 2010 **
*QUESTION—The requirement for appointment as external examiners for MBBS
ReplyDeleteexamination being that the person should be at least an Associate Professor
in a medical institute, is it a legally sound practice to have examiners
from places where there is no MBBS course, such as the PGIMER, Chandigarh?*
**
*ANSWER—*If a person fulfils the requirement for being appointed as an
external examiner and his name is approved by the university conducting the
examination, there is no illegality involved in his appointment,
irrespective of the fact as to whether his employer institution has an MBBS
course or not.
M C Gupta
MD (Medicine), LL.M.
Ex-Professor and Dean
Practicing advocate
mcgupta44@gmail.com
27 June 2010 **
*QUESTION—If a doctor with postgraduate degree in India joins a residency
ReplyDeletetraining program in UK leading to MRCP etc., and gets trained in skills like
endoscopy, cystoscopy, echocardiography etc. as a part of the residency
programme, will he be able to practice such skills in India?*
* *
*ANSWER*—Let us suppose the doctor learns to perform gastroscopy but does
not have a degree in gastro-enterology. Regulation 7.20 of the Indian
Medical Council (Professional conduct, Etiquette and Ethics) Regulations,
2002, is reproduced below:
*“7.20* A Physician shall not claim to be specialist unless he has a special
qualification in that branch.”
If he claims to be a gastro-enterologist, he would be breaching the above
regulation. However, if he holds out as an internist with special interest
in gastro-enterology and endoscopy, he would not be breaching the
regulation.
So, the answer to your question is, yes, he would be able to practice the
skills. However, it is advisable that he should have documentary proof of
proficiency in such skills.
M C Gupta
MD (Medicine), LL.M.
Ex-Professor and Dean
Practicing advocate
mcgupta44@gmail.com
30 June 2010 **
*QUESTION--Private medical colleges are treating faculty as bonded laborers.
ReplyDeleteAs an example, if a faculty member is a recognised PG teacher for the
academic session starting 2010 and a PG seat has been allotted against his
name, then he cannot leave the job for 3 years, till 2013. If another PG
seat is given in 2012, he cannot leave till 2014. This can continue
indefinitely and he can be kept in perpetual bondage. What is the solution?*
*ANSWER—*The solution is that he should strictly go by the appointment
letter at the time of joining service. Any appointment letter contains a
clause about the conditions for leaving service. He should join only if the
conditions are acceptable to him. If he wants to leave the job in the manner
laid down in the appointment letter, nobody can stop him. I don’t think
highly educated persons like professors in medical colleges can be kept as
bonded labour. If any injustice is committed against them, they can always
approach the courts.
M C Gupta
MD (Medicine), LL.M.
Ex-Professor and Dean
Practicing advocate
mcgupta44@gmail.com
2 July 2010 **
QUESTION—I am an MD in pathology having my own private laboratory. People
ReplyDeletecome to me for DNA tests for paternity. Can I do such tests? What is the
legal position?*
* *
*ANSWER*—To the best of my knowledge, there is no law that a private
laboratory cannot carry out DNA paternity tests. However, the following
points need to be kept in mind:
1—The information / test report should be revealed only to the person
concerned in such a manner that the charge of breach of confidentiality
between the client / patient and the doctor is not attracted.
2—Since the results of such tests are likely to result in legal proceedings,
proper records must be kept as regards: sample collection; signed and
informed consent from the person from whose body the sample has been taken,
if the person is an adult (the informed consent means such consent should be
taken in writing after informing the person about the % possibility of false
positive or negative results); records of the test itself, including the
standardisation / calibration of the testing apparatus and chemical reagents
/ matching standard etc., along with documented proof that the machine was
in proper working condition as evidenced by it being regularly checked under
an annual maintenance contract etc.
3--If the person whose sample is to be tested is not an adult, then both the
parents must give a joint written consent in their capacity as guardians. In
such a situation, the result should be communicated to the parents jointly
and not to the child.
4—While taking consent, the consenter should be asked to certify in writing
that no complaint or suit or legal proceeding is pending in any court where
the paternity might be an issue. If such case is pending, the laboratory
should not carry out the test unless there is a communication from the court
stating that it has no objection if the test is carried out. Otherwise,
performing such test might be alleged as constituting an interference in the
course of justice.
M C Gupta
MD (Medicine), LL.M.
Ex-Professor and Dean
Practicing advocate
mcgupta44@gmail.com
2 July 2010 **
health is a state subject: the maharashtra govt. is hell bent in allowing DMLT to practice pathology for that they are contemplating amendment in the maharashtra medical practioners act where they will add that dmlt is not a allopathic practice so that dmlt will be clubbed with indian medical system and allowed to run labs. __ can they do this.?
ReplyDeleteQUESTION—Can a hospital admit an unconscious patient whose identity is not known and who has been brought to emergency by some unknown passer-by, after the hospital has informed the police? Can doctors proceed for a life-
ReplyDeletesaving emergency operation, if required?*
*ANSWER—*I am a bit surprised at the question. There should not be any doubt regarding the following:
1—It is the duty of the hospital to admit a serious patient immediately without loss of even a minute and to start the treatment at once.
2—Information to the police can wait. The first thing should be to admit the unconscious patient and to start immediate treatment. Police may be informed when possible and feasible. Some delay in informing the police will not matter. The hospital does not need permission from the police to admit the
patient. There is no rule that the patient cannot be admitted without informing the police. The Supreme Court had clearly laid down in Parmanand Katara case that formalities like informing the police and preparing the MLC
can wait but the primary duty of the doctors, namely, saving life, should be attended to immediately.
3—Doctors can certainly proceed with a life- saving emergency operation, in the situation described.
-M C Gupta
QUESTION—Can a hospital produce electronic medical records (EMR) to the court instead of the hand written BHT?*
ReplyDeleteANSWER—***
1—The court needs hard copies, not soft copies. If the records are in electronic form, print outs should be submitted to the court.
2—The courts need original record or certified copy of the original. If the original record is in the form of hand written BHT (Bed head ticket), a photocopy of the same, signed by the hospital authorities should be submitted to the court along with a typed copy of the same.
3—I think it is better to use the term hospital case sheet rather than BHT.
-M C Gupta
QUESTION—I am an ophthalmologist in South India. A few years back we had a Punjabi residing in the south, who was advised immediate cataract operation, to avoid an impending glaucoma. She instead came to us for a second opinion. Honestly we found no pathology and told her so. She was so relieved. But it was a shock for us - such unprofessional conduct! * How to deal with such a menace?*
ReplyDelete*ANSWER—*There are legal and effective means to deal with such a menace but they cannot yield an immediate result. One has to spend time and effort and money but the results will be sure to come. Those who want to uphold proper
medical standards should be prepared to make the necessary expenditure.
Here is what can be done:
1—Complaint to the state medical council against the doctor by the patient, requesting the council to cancel the doctor’s licence.
2-- Complaint to state medical council by a doctor under Regulation 1.7 of the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002, which reads:
“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.”
3-- Complaint to District Consumer Forum by the patient, requesting the Forum to award compensation.
4—Complaint to state Health Directorate against the hospital, requesting the Directorate to punish the hospital by cancelling its registration etc.
5—If the state has a Clinical Establishment Act, then a complaint to the appropriate authority so designated under the Act, requesting them to cancel the licence issued to the hospital.
6—In the circumstances of this case, which need to be studied on the basis of documents, even a case of cheating may lie against the doctor concerned and the owner of the hospital and a police complaint may be lodged, requesting the court to arrest the persons guilty of the criminal act.
7—Complaint to the state / all-India ophthalmology society, requesting the
society to cancel the membership of the concerned ophthalmologist.
It would be better to get the help of an advocate or a consumer society for the above actions.
-M C Gupta
QUESTION—What is the format of consent for a non-medico-legal autopsy / pathological autopsy / clinical autopsy, to be signed by the next of the kin?*
ReplyDelete*ANSWER*—I do not know of any standard format. I suggest the following:
“I / we hereby give consent that an autopsy may be performed upon our relative Sh. / Smt. ………………….. subject to the following:
a—The autopsy may be performed on any part(s) of the body / may be limited to the following parts: …………….
b—Organ(s) / Tissue(s) may be taken out of the body for future use as deemed necessary by the doctors concerned.
c—Autopsy report would be kept confidential but may be used for scientific / legal purposes. The report would be made available to the person(s) giving consent.
Name, Signatures, address, telephone no. of the person(s) giving consent.
Name, Signatures, address, telephone no. of two witnesses.
Date and place:………………..”
----M C Gupta
Status of postgraduate diploma holders*
ReplyDelete*QUESTION—Please answer the following queries related to holders of diplomas such as **DCH, DMRE, DGO, DMRD, DOMS etc., who are semi- qualified, semi- skilled:*
*A—Can they act as consultants?*
*B—Can a family practitioner safely refer patients to them and treat his patients as per their advice, without being held guilty of negligence?*
*ANSWER—*Diploma holders are NOT semi-qualified or semi-skilled. The answer to A and B is in the affirmative.
-M C Gupta
QUESTION--** When a doctor found negligent by a District Consumer Forum is found non-negligent by the State or National Commission, why should not the District Forum itself be held liable for negligence?** *
ReplyDelete*ANSWER—*The reason is that the Consumer forums / commissions, being quasi-judicial tribunals, enjoy judicial immunity similar to the courts of law*. *Judicial immunity provides those exercising judicial functions in a
court with exemption from all civil liability for anything done or said by them in their judicial capacity.
The rationale underlying judicial immunity was expressed by Lord Denning MR in *Sirros*
*v. Moore *[1975] QB 118 at 136 to be:
“Every judge of the courts of this land from the highest to the lowest should be protected to the same degree, and liable to the same degree. If the reason underlying this immunity is to ensure “that they may be free in
thought and independent in judgment”, it applies to every judge, whatever his rank. Each should be protected from liability to damages when he is acting judicially. Each should be able to do his work in complete independence and free from fear. He should not have to turn the pages of his books with trembling fingers, asking himself; “If I do this, shall I be
liable in damages?” So long as he does his work in the honest belief that it is within his jurisdiction, then he is not liable to an action.”
http://www.network-presidents.eu/IMG/pdf/Reponse_Royaume_Uni.pdf
-M C Gupta
How not to treat a patient with trembling hands, always afraid of a negligence suit?*
ReplyDeleteQUESTION--What is the way out so that a doctor does not treat a patient with trembling hands thinking that he might be held legally liable for negligence in spite of giving treatment to the best of his ability and knowledge?
*******
ANSWER--The way out is as follows: 1—First of all, a doctor should accept the fact that he is an ordinary human being and not a demi-god or a
super-sincere saint or a super-knowledgeable expert whose actions and decisions ought to be beyond questioning by lesser mortals. 2--Once he
accepts the above, he should also be able to accept the need for proper record keeping and proper decision making based on sound and proven
scientific principles and practices. It is only such sound records and decisions that would save him from false allegations of negligence. 3—That the above guidelines are extremely important and not unnecessary is shown by
the following illustrative examples: a—In a 350 bedded hospital that I recently visited, I was asked by senior doctors as to whether it was
necessary to keep records of outdoor treatment. The hospital was not keeping any records. I had to bluntly tell them that OPD records were being retained in AIIMS even in 1959 when I joined it as a medical student.
b—In the same hospital, I was informed that whenever the patient asked to have the indoor case sheet, the same was being given to him in original without even keeping a photocopy.
CONTd ...
c—A patient had been operated thrice by an orthopedic surgeon and I was defending him in the National Commission. The NC wanted to have a copy of the 3 case sheets but these were just not available. Luckily, he found them in some junk heap a few days before the hearing. They were very sketchy, but I was able to save him.
ReplyDeleted—In a case where I was defending the doctors, I found the following gem recorded in black and white in the hand writing of an MD (anaesthesia), duly signed: “To give immediately Injection Lasix 1 gm. Intravenous bolus injection every 2 minutes, total 5g.” The patient was 70 years old and was undergoing arthroscopy of knee. He died within 45 minutes of the 5g. dose.
4—Please remember that the duty of a doctor does not end with giving “treatment to the best of his ability and knowledge”. That the ability and knowledgeare “best” cannot be assumed and may have to be proven.
5—Just as it is necessary for a judge to give a "speaking" or "reasoned" judgment running over several pages, so is it necessary for a doctor to record the facts and rationale of treatment over at least a few lines.
6—I can understand as a doctor that there may be emergency situations where doctors cannot write detailed records while they are attending to a serious patient. What I cannot understand is why doctors cannot write proper notes
after the treatment has been given and they have some time.
7--Please note that it is perfectly legal to write notes after the treatment has been given as long as the background and the circumstances are explained. For example, the notes may read something like this: “This patient was brought to the casualty at 4 p.m. When examined, he had severe gasping. Resp. rate—35 p.m. Chest expansion and air entry almost nil. Mild cyanosis + Immediate oxygen was started. Tracheostomy started at about 4-05 p.m. and
completed at about 4-10 p.m. Condition improved markedly. RR 20/min.
Operation notes as follows:
……………………….
………………………..
……………………..
Signed: Dr. ABC
[These notes were written at about 4-20 p.m. after the emergency had been attended to and life- saving treatment had been given].
-M C Gupta
QUESTION—The technology wing of our hospital is situated 8 km. away from the hospital. Patients for “sleep study” **are admitted there at 6 PM and are discharged at 6 AM next day. During this period, they are under the care of a nurse and MSW while a doctor is on call.*
ReplyDelete*Please answer the following—*
*1—Are these patients inpatients or outpatients?
*2--- Can / should they be given an in-patient no. (IP no.) of the main hospital.?*
*3--- If not, then are there any problems expected in the event of any mishap ? *
* *
*ANSWER—*The answer to the first two questions is in the affirmative. The following would make the situation clear:
1—An inpatient is defined as “a hospital patient who occupies a bed for atleast one night in the course of treatment, examination, or observation”. (Collins English Dictionary – Complete and Unabridged © HarperCollins
Publishers 1991, 1994, 1998, 2000, 2003)—
http://www.thefreedictionary.com/inpatient
2—A patient can be an inpatient of only a hospital, not of a technology wing manned by a nurse and MSW. Hence these inpatients are to be given an IP no. of the main hospital.
3—If the patient is not admitted as an inpatient of the main hospital and does not have an IP registration no. of the main hospital and an untoward incident (death; fall due to sleep walking; sleep apnea; sexual molestation etc.) occurs during the night, the courts will squarely fasten responsibility upon the main hospital. Non-registration as an inpatient of the main hospital is likely to be construed as an attempt to avoid responsibility.
----M C Gupta
QUESTION –What are your views about the following article published in The Tribune regarding the recent decision of the Delhi State Consumer Commission whereby a pediatrician was asked to pay Rs. 3 lakh to a person who died of stab wounds outside his clinic?*
ReplyDelete* *
*http://www.tribuneindia.com/2010/20100819/edit.htm#6*
*ANSWER—*The article is written by a professor of sociology at Delhi University. Some of the statements in the article, along with my comments, are as follows:
1—Through this decision, an Indian citizen’s right to claim emergency healthcare was vindicated.Everyone has a right to emergency health care. [MY COMMENT—A citizen has a fundamental right to health as held by the Supreme Court in its interpretation of Artcle 21 of the Constitution, which states that right to life is a fundamental right. However, let it be clear that a fundamental right operates against the state, not other citizens. There is
an even a more fundamental right to food. Health comes later. No citizen can be punished by a court for not giving food to his neighbour who dies of hunger. The fundamental right to food operates against the state, not against others. It is the duty of the state to ensure that citizens don’t die of hunger. Similarly, it is the duty of the state to ensure that
citizens don’t die for lack of medical care. In this case, the court was clearly misdirected in holding the doctor responsible in law for the death of the wounded.]
2—This right flows from Article 25 of The Universal Declaration of Human Rights. [MY COMMENT—There is no need to go to the Universal Declaration of Human Rights. Right to health has been recognised as a fundamental right by
the Indian Courts].
COntd ..
3— The court reminded the doctor of the Hippocratic oath to render help to a dying man (human being). Doctors are bound by the Hippocratic Oath. [MY COMMENT—The court was talking out of imagination bordering on ignorance. No doctor in India is bound by the Hippocratic Oath. Doctors are bound by
ReplyDeletetheIndian Medical Council (Professional conduct, Etiquette and Ethics)Regulations, 2002. These make no reference to the Hippocratic Oath. Even otherwise, an oath taken by a person voluntarily out of his own conscience cannot be treated as a legal binding or a legal agreement between that person and others. If I take an oath of celibacy, that does not mean a court can punish me for breaking my oath.]
4-- The onus of providing emergency medical attention and referral is undeniably the doctor’s calling. [MY COMMENT—This may be a doctor’s calling at his option and most doctors would abide by it. It is not a legal binding
and cannot be enforced against him by law.]
MY FURTHER COMMENTS—
a—If a doctor in private practice who is not in any way supported by the state / government provides emergency care to a patient to save his life, he needs to be gratefully thanked and compensated for this by the state through
a suitable mechanism [such as the following: Either an insurance scheme for emergency treatment by doctors of persons who are not their patients but are brought to them in an emergency, the insurance premium being paid to the insurance company by the government and the cost of treatment being re-imbursed to the doctor by the insurance company; Or, a scheme such as the solatium fund scheme in respect of those injured or killed by untraceable
motor vehicles.]
b—The principle of compensating a doctor for emergency care is clearly reflected by the Railway scheme of giving 10% concession in ticket to doctors so that, for this consideration, they may render any possible
medical aid to passengers in emergencies.
c—The forthcoming Clinical Establishments Act, 2010, strikes at the very root of the principles laid down above and seeks to impose a mandatory legal binding, at the threat of punishment, upon all establishments (single
doctors’ private OPD clinics as well as hospitals) that they must treat a patient brought in an emergency, without there being any provision for necessary fees. This might as well prove to be the straw that breaks the
camel’s back. The pity is that the camel in this case is highly educated and intelligent and prides itself to be the “cream of the cream” and is highly organised in the form of an elephantine organisation called the IMA, which might as well be spelled out as Indian Morose Association. This great profession / organisation refuses to see what is written on the wall.
-M C Gupta
3— The court reminded the doctor of the Hippocratic oath to render help to a dying man (human being). Doctors are bound by the Hippocratic Oath. [MY COMMENT—The court was talking out of imagination bordering on ignorance. No doctor in India is bound by the Hippocratic Oath. Doctors are bound by
ReplyDeletetheIndian Medical Council (Professional conduct, Etiquette and Ethics)Regulations, 2002. These make no reference to the Hippocratic Oath. Even otherwise, an oath taken by a person voluntarily out of his own conscience cannot be treated as a legal binding or a legal agreement between that person and others. If I take an oath of celibacy, that does not mean a court can punish me for breaking my oath.]
4-- The onus of providing emergency medical attention and referral is undeniably the doctor’s calling. [MY COMMENT—This may be a doctor’s calling at his option and most doctors would abide by it. It is not a legal binding
and cannot be enforced against him by law.]
MY FURTHER COMMENTS—
a—If a doctor in private practice who is not in any way supported by the state / government provides emergency care to a patient to save his life, he needs to be gratefully thanked and compensated for this by the state through
a suitable mechanism [such as the following: Either an insurance scheme for emergency treatment by doctors of persons who are not their patients but are brought to them in an emergency, the insurance premium being paid to the insurance company by the government and the cost of treatment being re-imbursed to the doctor by the insurance company; Or, a scheme such as the solatium fund scheme in respect of those injured or killed by untraceable
motor vehicles.]
b—The principle of compensating a doctor for emergency care is clearly reflected by the Railway scheme of giving 10% concession in ticket to doctors so that, for this consideration, they may render any possible
medical aid to passengers in emergencies.
Contd ...
c—The forthcoming Clinical Establishments Act, 2010, strikes at the very root of the principles laid down above and seeks to impose a mandatory legal binding, at the threat of punishment, upon all establishments (single
ReplyDeletedoctors’ private OPD clinics as well as hospitals) that they must treat a patient brought in an emergency, without there being any provision for necessary fees. This might as well prove to be the straw that breaks the
camel’s back. The pity is that the camel in this case is highly educated and intelligent and prides itself to be the “cream of the cream” and is highly organised in the form of an elephantine organisation called the IMA, which might as well be spelled out as Indian Morose Association. This great profession / organisation refuses to see what is written on the wall.
-M C Gupta
QUESTION—A medical colleague working in a government set up has received a legal notice alleging negligence. What should he do? Should he reply to it*? *It is said that it is better to ignore because whatever reply is given, one
ReplyDeletewill be bound by it. Is this a correct approach?*
*ANSWER—*The legal position is that one is not bound to reply to a notice. However, it would be wrong to ignore it. It is better to send an appropriate reply. It would be better if the reply is prepared by or in consultation with an advocate. It is true that if a complaint is filed with the concerned authority by the complainant, the reply is likely to form a part of the complaint. However, that is no reason not to send a reply. Forewarned is forearmed. If a proper reply is sent at this stage, the following benefits may follow:
1-- If the reply is of a convincing nature, there is 1-2% chance that the person may not decide to file complaint with the authority concerned.
2—The process of preparing a reply will make the doctor more aware of any weakness or lacunae in his defence which he can try to fortify while there is time.
3—If a complaint is filed in the court and the doctor receives a court notice / summon, the doctor would not be taken unawares and will be able to deal with the court case without much stress.
If the alleged negligence was committed during the course of government duties, your friend is entitled to defence by the government counsel / at government expense. It is highly likely that the government would be made a party in the case. It is advisable for him to take the following steps:
a—To give the legal notice to his boss and ask for advice / help.
b—if the government counsel prepares a reply to the notice, your friend should not sign it blindly. He should sign only after he has read it and is satisfied. Sometimes it happens that there is a conflict of interests and the hospital tries to pass off the blame to the doctor. If your friend feels that the reply is unduly favourable to the hospital / government and against the doctor, he should better engage his own counsel.
Please note that since your friend is working in a government set up, and since
----M C Gupta
*QUESTION—I am a doctor aged 45 years. I want to join LL.B. course. Is it possible in view of my age?*
ReplyDelete*ANSWER—*
*1*-- Early this year, BCI brought in a resolution setting age limit of 20
for admission to five year LLB and that of 30 for the three year LLB course.
This step was taken, ostensibly, in the interest of high standards of legal
education and practice.**
2--. In the late nineties, Delhi Bar Council had made a rule that people
could not enroll as advocates after 40 years age. This was challenged in
Delhi High Court and was quashed.
3—Lawyers, as a community, tend to be exclusive and want to prevent others
from joining the bar. This is an unhealthy trend. This will, ultimately,
result in further deterioration of the law profession itself. No branch of
knowledge can grow in exclusion. Inter-disciplinary growth in various fields
needs to be encouraged.
4-- I don't know why lawyers are so afraid of "others" encroaching upon
their "territory"? Why do they want to build exclusive monopolistic empires?
Is the present fleecing and loot of the public not enough?
5-- I am an ex-professor of medicine having an LL.M. degree. I joined the
Bar in 2001. My specialty is medico-legal cases. I have been pretty
successful and am fulfilling a need which is beyond an ordinary advocate. So
many people keep on sending me medico-legal queries and I keep on replying
to them on the internet as a part of service to the society.
6--What I am doing in law related to medicine can be done by others as
regards law related to engineering, commerce and other specialised fields.
The interdisciplinary growth of law needs to be encouraged. That is why LLB
courses have been started in IIT Kanpur and Kharagpur. I deplore the stand
of the BCI.
7--The attempts by the Bar Council of India to limit the age for joining the
LL.B. course are ridiculous. The attempts have been challenged:
a-- A PIL has been filed in the Bombay High Court challenging the Bar
Council of India Rule (Rule 28) that states that no person shall be admitted
to a 5 year LLB course if he or she is above the age of 20 and to a 3 year
LLB course if above the age of 30. It has been filed by Yasmin Tavaria, a
practicing advocate. According to her: “commitment to the profession and age
can never be inversely related to each other and that the age of a person
has no bearing on the degree of commitment with which he or she would pursue
a profession.”
According to advocate Tavaria, Andhra Pradesh High Court last month (May,
2010), hearing a PIL on the same issue, stayed the operation of the BCI
rule. As a result, all the colleges in the country can give admissions
notwithstanding the rule, Tavaria said.
b-- Advocate Mahesh Vaswani has filed a Writ Petition in the Bombay High
Court on behalf of his client Shabnam Amin Mulani, a lady cop of Mumbai
Police against the newly imposed age restrictions in legal education. He
has written:
8-- The Supreme Court has recently transferred to itself the 60 odd cases in various high courts regarding the age of entry to the LL.B. course.
ReplyDelete9-- The Commissioner for Entrance Examinations, Kerala has invited applications from candidates for the entrance test to be held on 14th August
for admission to the three year LLB course at Government Law Colleges, Trivandrum, Ernakulam, Thrissur and Kozhikode. There is no upper age limit for admission to the 3 year LL.B Course.**
The full news / notification inviting applications can be viewed at
http://www.kerala365.com/education/admission-to-the-3-year-llb-course-entrance-on-august-14/
10—Courts usually hold that once a student joins a course, is examined and given a degree by a proper university, the degree cannot be snatched away simply because the professional council (medical or bar council) has
objection. In this particular instance, there is a very high chance that the objection itself will be struck down.
11—SUMMARY: The BCI rule regarding age limit for admission to LL.B. is flawed. It has been challenged through about 60 writ petitions in various High Courts. Andhra Pradesh High Court has stayed the BCI rule. The Supreme
Court has recently transferred all the High Court petitions on this issue to itself. Many universities are going ahead with LL.B. admissions ignoring the new BCI rule. You should believe the college management and should join the LLB course.
- M C Gupta
As per news given below, the MCI has made it compulsory that “all medical graduates must register with the state medical councils wherever they are practicing”.
ReplyDeleteTHE NEWS
http://updates.highereducationinindia.com/2010/mci-makes-registration-mandatory-for-4178.php
MCI Makes Registration Mandatory for Doctors
THE COMMENT—
1—I do not have detailed information regarding:
a—Whether it is, at present, a proposal / proposed decision / actual decision not yet conveyed to those affected through regular channels/ an administrative decision having legal force?
b—What is the actual proposal / scheme? Will doctors registered in state A and having a registration no., say, A-123, be forced to register in state B on payment of full charges as applicable in state B, with issuance of a new
registration number, say B- 456? Or, will it be a reciprocal registration on payment of nominal charges with, say, issuance of a supplementary
authentication such as: A-123 (B/789)?
c—What is the provision for those with transferable jobs, especially for defence and para-defence services, who might be posted at short notice in or out of stations?
2—It is a logical move for better professional control but it must be ensured that all legal requirements are met. As per the existing MCI
Act,1956, there is no requirement for multiple registrations. As per the Bar Council rules / Advocates Act, 1961, there is no requirement for
multiple registration. The MCI should follow the pattern of the BCI, where an advocate is required to inform about the area of his routine practice from one state to another, without fresh registration.
QUERY—Can anyone supply me:
a—Detailed information;
b—Answers to quries in (1) above?
M C Gupta
QUESTION—Doctors, both general doctors and specialists, give loose tablets to patients without disclosing their identity, even when the patient has a reaction and asks for the name of the drug. Is this ethical or legal? Is it not against patients’ rights? *
ReplyDelete*ANSWER—*
1—The practice of a physician giving loose tablets to a patient without disclosing their identity is certainly unethical.
2—Such practice is also violative of the following regulations of the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002:
“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.
6.5 Secret Remedies: The prescribing or dispensing by a physician of secret remedial agents of which he does not know the composition, or the manufacture or promotion of their use is unethical and as such prohibited. All the drugs prescribed by a physician should always carry a proprietary
formula and clear name.”
3— Such practice amounts to deficiency of service in terms of the Consumer Protection Act, 1986, where deficiency is defined as:
“(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;”
CONTD
4—Such practice is violative of patients’ rights in that the American Hospital Association has included the following among the rights of the patient:
ReplyDelete“2. The patient has the right to and is encouraged to obtain from physicians and other direct caregivers relevant, current, and understandable information concerning diagnosis, treatment, and prognosis.
Except in emergencies when the patient lacks decision-making capacity and the need for treatment is urgent, the patient is entitled to the opportunity to discuss and request information related to the specific procedures and/or treatments, the risks involved, the possible length of recuperation, and the
medically reasonable alternatives and their accompanying risks and benefits.
Patients have the right to know the identity of physicians, nurses, and others involved in their care, as well as when those involved are students, residents, or other trainees. The patient also has the right to know the immediate and long-term financial implications of treatment choices, insofar
as they are known.
--- http://www.injuredworker.org/Library/Patient_Bill_of_Rights.htm
5—Such practice is also violative of the principle of right to information that a patient has in terms of the Charter of the Hospital patient (Luxembourg, 9 May 1979), adopted by the Hospital Committee of the European Economic Community during its Plenary Session held in Luxembourg set from the sixth to the ninth of May 1979.
http://www.hope.be/07publi/publoth/Hospchart.htm
“4. The hospital patient has the right to information relevant to his situation. The best interests of the patient should be paramount in the imparting of information. Subject to this, the information given must allow the patient the fullest insight into all aspects of his situation, medical and otherwise and, on an informed basis, enable him to make his own decisions or to participate in decisions which have implications for his well-being.”
6—If a patient suffers bodily injury as a result of taking loose tablets of undisclosed nature given by a physician, he has the following remedies against the physician:
a—Compensation under the Consumer Protection Act, 1986, for injury suffered, by filing a consumer complaint;
b—Punishment to the physician for causing hurt / grievous hurt in terms of IPC 324 / 326 respectively by filing a criminal / police complaint.
- M C Gupta
4—Such practice is violative of patients’ rights in that the American Hospital Association has included the following among the rights of the patient:
ReplyDelete“2. The patient has the right to and is encouraged to obtain from physicians and other direct caregivers relevant, current, and understandable information concerning diagnosis, treatment, and prognosis.
Except in emergencies when the patient lacks decision-making capacity and the need for treatment is urgent, the patient is entitled to the opportunity to discuss and request information related to the specific procedures and/or treatments, the risks involved, the possible length of recuperation, and the
medically reasonable alternatives and their accompanying risks and benefits.
Patients have the right to know the identity of physicians, nurses, and others involved in their care, as well as when those involved are students, residents, or other trainees. The patient also has the right to know the immediate and long-term financial implications of treatment choices, insofar
as they are known.
--- http://www.injuredworker.org/Library/Patient_Bill_of_Rights.htm
5—Such practice is also violative of the principle of right to information that a patient has in terms of the Charter of the Hospital patient (Luxembourg, 9 May 1979), adopted by the Hospital Committee of the European Economic Community during its Plenary Session held in Luxembourg set from the sixth to the ninth of May 1979.
http://www.hope.be/07publi/publoth/Hospchart.htm
“4. The hospital patient has the right to information relevant to his situation. The best interests of the patient should be paramount in the imparting of information. Subject to this, the information given must allow the patient the fullest insight into all aspects of his situation, medical and otherwise and, on an informed basis, enable him to make his own decisions or to participate in decisions which have implications for his well-being.”
6—If a patient suffers bodily injury as a result of taking loose tablets of undisclosed nature given by a physician, he has the following remedies against the physician:
a—Compensation under the Consumer Protection Act, 1986, for injury suffered, by filing a consumer complaint;
b—Punishment to the physician for causing hurt / grievous hurt in terms of IPC 324 / 326 respectively by filing a criminal / police complaint.
- M C Gupta
4—Such practice is violative of patients’ rights in that the American Hospital Association has included the following among the rights of the patient:
ReplyDelete“2. The patient has the right to and is encouraged to obtain from physicians and other direct caregivers relevant, current, and understandable information concerning diagnosis, treatment, and prognosis.
Except in emergencies when the patient lacks decision-making capacity and the need for treatment is urgent, the patient is entitled to the opportunity to discuss and request information related to the specific procedures and/or treatments, the risks involved, the possible length of recuperation, and the
medically reasonable alternatives and their accompanying risks and benefits.
Patients have the right to know the identity of physicians, nurses, and others involved in their care, as well as when those involved are students, residents, or other trainees. The patient also has the right to know the immediate and long-term financial implications of treatment choices, insofar
as they are known.
--- http://www.injuredworker.org/Library/Patient_Bill_of_Rights.htm
5—Such practice is also violative of the principle of right to information that a patient has in terms of the Charter of the Hospital patient (Luxembourg, 9 May 1979), adopted by the Hospital Committee of the European Economic Community during its Plenary Session held in Luxembourg set from the sixth to the ninth of May 1979.
http://www.hope.be/07publi/publoth/Hospchart.htm
CONTd
“4. The hospital patient has the right to information relevant to his situation. The best interests of the patient should be paramount in the imparting of information. Subject to this, the information given must allow the patient the fullest insight into all aspects of his situation, medical and otherwise and, on an informed basis, enable him to make his own decisions or to participate in decisions which have implications for his well-being.”
ReplyDelete6—If a patient suffers bodily injury as a result of taking loose tablets of undisclosed nature given by a physician, he has the following remedies against the physician:
a—Compensation under the Consumer Protection Act, 1986, for injury suffered, by filing a consumer complaint;
b—Punishment to the physician for causing hurt / grievous hurt in terms of IPC 324 / 326 respectively by filing a criminal / police complaint.
- M C Gupta
QUESTION—I think it will be better if all doctors are registered directly with the MCI and the MCI may issue them a registration no. which would also indicate the state where they are located. Is this not possible?*
ReplyDelete*ANSWER—*No this is not possible within the existing constitution and legislations:
1—As per the constitution, health is a state subject. That is why there are state medical councils established under specific state legislations in different states.
2—As per the present legislations, the scheme provided in the MCI Act, 1956, is that the state councils maintain a state medical register of medical practitioners and the MCI maintains an Indian Medical Register based upon
the information provided by the state medical councils. The national and state medical councils have to act as per the provisions of the statute creating them. Any deviation from the procedure laid down will be illegal.
3—If the medical profession thinks a change is needed in the above scheme, it / the IMA should propose an alternate scheme to the government. Only then will the government be able to act upon the request.
-- M C Gupta
QUESTION— *When a* *doctor works in two or more states at the same time, each state asks that he should be registered with the concerned state
ReplyDeletemedical council. What is the legal position? What should the doctor do?
*ANSWER—*
a--The legal position is that a doctor registered with any of the state medical councils is entitled to practice medicine anywhere in India in terms of the Indian Medical Council Act, 1956. The state medical council acts making it necessary for every doctor in the state to get registered with the
respective state medical council are in derogation of the IMC Act, 1956.
2—What the doctor should do is as follows:
a—If he is already in practice or service or proposes to start his own practice, he should go ahead and ignore the state medical council
requirement and if the state medical council takes any action, to legally fight it. The chances are that the state medical council will not take any action because it is not empowered to do so.
b—If he is eligible for work or employment in an organisation or an agency of the government in the state and the organisation / government deny him the work or employment opportunity on the ground that he is not registered with the particular state medical council, he should file a writ petition in the state High Court against the organisation / government and the state medical council and also impleading the MCI.
-- M C Gupta
MD (Medicine), LL.M.