LAW AND ETHICS for and concerned with Forensic

Aims
• To know what is ethics? Who regulates
• What are the acts to enforce ethics
• Role of Medical Councils
• Rights & Duties of doctor
• Rights & Duties of patient
• Medical Negligence and its variants
• Consent
• Acts and laws in relation to medical practice

• Ethics:
The systematic study of rightness and
wrongness of human conduct and
character as known by natural reason
• Professional Ethic:
The ethical conduct of a profession

ETHICS:
• Self imposed code of conduct
• Formulated by National & State medical
councils
• Enforcement of code is done by councils

INDIAN MEDICAL DEGREES ACT, 1916
• To regulate the grant of titles implying
qualification in western medical science
• Authorities have the right to grant medical
degrees, diplomas, licenses & certificates
• Qualified to practice western medical
science

HOMEOPATHY CENTRAL COUNCIL
ACT, 1973
• To regulate the profession of Homeopathy
and constitute Central Council
• Constitution and functions same as IMC

INDIAN MEDICINE CENTRAL COUNCIL
ACT, 1970
• To lay down minimum standards of
education and practice of Indian system of
medicine
• Ayurveda, Siddha, Unani, Tibbi, Asthang

THE INDIAN MEDICAL COUNCIL ACT,
1956
• The medical council consists of
• One member from each state by central
Govt
• One member from each University elected
among the members of University
• One from each state in which state
medical register is maintained elected by
members of SMC

• Seven members to be elected from among
themselves by persons enrolled in any
SMC
• Eight members to be nominated by central
Govt

• Five years, president vice president
registrar
• Executive committee- pres, vice pres and
7-10 other members
• Other committees for general or special
purpose

• I schedule- recognized medical
qualifications granted by universities in
India
• II schedule- those granted outside India
• Part I of III schedule- those granted by
institutions not included in I schedule
• Part II of III schedule- those granted
outside India, but not included in II
schedule

Indian medical council
Functions
1. Medical register-
• Maintains Indian medical register
• Names of all persons enrolled in all SMC
• If name removed from state register-
removed

2. MEDICAL EDUCATION
• Authority to prescribe standards of PG
medical education.
• Advice universities to maintain uniform
standards for pg medical education
• Post graduate medical education
committee (9)
• Prior approval to start pg courses,
• Or else not recognised

• Maintains standards of undergraduate
medical education
• Minimum standards of medical education
for granting recognised medical
qualifications by universities or institutions

• Medical inspectors/ Assessors
• Report to the council of adequacy of
standards of medical education
• Council forwards a copy to university or
institution for remarks
• A copy with remarks sent to central Govt

• Council not satisfied- recommendation to
govt to withdraw recognition
• Central Govt to state Govt to university or
institution to state Govt to central Govt
• Any university which grants medical
qualification not included in I schedule can
apply to central Govt
• Central Govt after procedure notifies it in
official gazette

3) REGONITION OF FOREIGN MEDICAL
QUALIFICATION
• Obtains foreign qualification not included
in part ii of 3rd schedule- can apply with
details
• IMC – enter into negotiations with any
medical councils and can recognise on
reciprocal basis

4) APPEAL AGAINST DESCIPLINARY ACTION
• Name removed- appeal to cent Govt after
all remedies under SMC
• Appeal with grounds, all documents within
30 days from the date of decision
• Decision of cent Govt in consultation with
IMC is binding on state Govt and SMC

• 5) WARNING NOTICE
• Standards of medical etiquette and code
of ethics
• Can issue warning notices for serious
professional misconduct

• 15th may 2011 Government amended the
IMC Act by ordinance
• 7 members Board of Governors to look
after the function of executive committee
for one year
• Extended to one more year
• Another ordinance to make elected body
• Elected new president on 10-12-2013

• STATE MEDICAL COUNCIL
• Autonomous bodies under state medical
council act
• Consists of members elected by RMP and
those nominated by state Govt
• President and vice president

FUNCTIONS
1. MEDICAL REGISTER-
Registrar
Procedure
Provisional registration in state medical
register

2) DISCIPLINARY CONTROL:
• SMC have disciplinary control over
medical practitioners
• Power to remove the names permanently
or for a specific period from registers after
due enquiry
• Also authorised to direct the restoration of
name removed

• 3) WARNING NOTICE:
similar to IMC

 HIPPOCRATIC OATH- DECLARATION OF
GENEVA
• Applicant shall read &agree to abide by
the same
• I solemnly pledge myself to consecrate
my life to the service of humanity
• I will maintain utmost respect for human
life from the time of conception. Even
under threat i will not use my medical
knowledge contrary to the laws of
humanity

• I will not permit the consideration of
religion, nationality, race, party politics or
social standing to intervene between my
duty and patient
• I will practice my profession with
conscience and dignity ,the health of my
patient will be my first consideration
• I will respect the secrets which are
confided in me
• I will give my teachers the respect and
gratitude which is their due

• I will maintain by all means in my power
the honor and noble traditions of
Medical profession
• I will treat my colleagues with respect and
dignity
• I shall abide by the code of medical ethics
as enumerated in Indian medical council
regulations 2002
• I make these promises solemnly, freely
and upon my honor

• JUDICIAL PROCEDURE OF STATE COUNCIL
• Information reaches SMC that practitioner
has been convicted of cognisable offence
or found guilty of serious professional
misconduct
• By a complaint being made by some
person or body against practitioner
• Council= civil courts sec 193, 219, 228
IPC

• Register- president- sub committee
• If no prima facie case is made out-
complainant informed
• Enquiry- notice to practitioner with details
and to attend
• On hearing conclusion by voting
• If guilty vote again for removal or warn not
to repeat
• Deletion published - local press
&publication

ERASURE OF NAME
1. After the death of practitioner
2. Entries made in error or a result of fraud
3. Penal erasure- serious professional
misconduct
PRFOESSIONAL DEATH SENTENCE
• Deprives the practitioner of all privileges of
registered practitioner

SERIOUS PROFESSIONAL MISCONDUCT
(INFAMOUS CONDUCT IN PROFESSIONAL
RESPECT)
• Any conduct of doctor which might
reasonably be regarded as disgraceful or
dishonorable
• Conduct is judged by professional men of
good repute and competence

• Warning notice
• RMP should follow the rules of conduct
contained in code of medical ethics
• Examples of offences that constitute
serious professional misconduct
• Not a complete list
• If found guilty of any offences mentioned
in warning notice- erasure

1. Adultery
2. Improper conduct or association with pt
or member of pt family

3. Conviction by court of law for offences
involving moral turpitude and criminal
acts
4. Issuing a false, improper, misleading
certificate
sickness, insurance, passport

5. Withholding information of notifiable
diseases to health authorities
6. Unqualified person to perform
abortion/any illegal operation

7. Contravening provisions of Drugs and
Cosmetics Act and regulation
A) prescribing steroids/psychotropic drugs
when no indication
B) selling H and L schedule drugs to public
except to his pt

8. Not displaying registration number on
his clinic, prescription and certificates
9. Dichotomy or fee splitting
receiving or giving commission or other
benefit to colleague of mfg
10. Using touts or agents for
Procuring pts

11.Disclosing the secrets of a pt learnt
during professional experience except in
court/ notifiable disease & privileged
communication
12.Covering- assisting someone with no
medical qualification to attend/treat or
perform
13. Association with mfg firms
Surgical instrument/ drug
Prescription in private formulae

14. Advertising
A) should not publish on his own in lay
press report of cases treated or operated
by him
B) can write under his own name on
matters of public health, hygienic living,
give talks on radio, TV/internet

C) press- starting of practice, interruption
or restarting, change of address, change
of type of practice
D) an institution – for blind / crippled,
rehab centre can advertise

E) unusually large sign board
• Contents
• Prescription pad contents
• Sign board at a place where he does not
work

F) not exhibit the fees publicly except in
his consultation room
G) should not advertise through mfg firms
directly or indirectly
H) printing self photograph /any material of
publicity in letter head or sign board or
consulting room – self advertisement

15. Professional association with bodies or
societies of unqualified persons formed for
turning unqualified practitioners
16. Running an open shop for the sale of
medicines, for dispensing prescriptions of other
doctors or for sale of medical/surgical
appliances
17. Shall not refuse on religious grounds alone
or to give assistance in or conduct of sterility.
Birth control, circumcision

18. Drunk and disorderly- interfere with skilled
19. Shall not aid or abet torture or concealment
of torture
20. Not publish photographs or case reports
without permission. If identity not disclosed no
need of permission

21. Sex determination test- terminate life of
female foetus
22. Failure to take consent of both husband and
wife in operations affecting sterility
23. In vitro fertilisation/ artificial insemination
without consent of woman, husband and donor
24. Violation of ICMR guidelines in clinical trials
or other research

IN SHORT 6 A’S
• Adultery
• Advertising
• Abortion
• Association with unqualified
• Addiction
• Alcohol

• Indian medical council (professionals
conduct, etiquette and ethics) regulations,
2002

1. Do not refer- unless absolutely necessary
Without commission
2.Free to choose pt but not arbitarily refuse
treatment or refuse any request for help in
emergency
3.Once take up the case- do not neglect or
withdraw without giving notice to pt/family

4.Display fee and other charges on board
5. No endorsement for any drug or
equipment
Even if no financial consideration involved
6.Drugs should have proprietary formulae
and generic names

7. No sex determination test- destroy female
foetus
8. Not subject to trials or therapies unless it
is according to ICMR guidelines
9. Indoor pt- 3 yrs
10. Records handed over- 72 hrs

11. 30 hrs of CME every 5 yrs
12. Registration number in his
clinic, prescription,
certificate, receipts
13.Expose without fear / favor incompetent/
corrupt conduct of members of medical
profession

14.Pleasure and privilege to render service
to all physicians and other family
dependents
15. Disseminate advice on public health
issues

• RIGHTS AND PRIVILEGES OF RMP
1. Right to practice medicine
2. Right to choose a pt
3. Right to dispense medicines
4. Right to possess and supply
dangerous drugs to his pts
5. Right to add title, description
To his name

6.Right to recovery fees
7. Right for appointment to public &local
hospital
8. Right to issue medical certificates
9. Right to give evidence as an expert
10. Exemption from serving as juror at an
inquest

 RED CROSS EMBLEM +
• Geneva convention act, 1960, u/s 12 prohibits
the use of red cross, red crescent without
approval from Govt of India
• Sec 13- penalty up to Rs 500/- and forfeiture of
goods
• Right of members of medical service of army

DUTIES OF MEDICAL PRACTITIONER
1. Duty to exercise reasonable degree of
skill and knowledge
Duty of care arises-
On admitting
Neither guarantees cure nor an assured
improvement

2. Duties with regard to attendance and
examination
• Once he aggress- as long as it requires
• Withdraw after giving notice

• Can withdraw without consent for valid reasons
 Himself sick
 Malingering
 Other remedies used
 Ignoring instructions
 Financial- not fulfilled
 Other doctor also
 Persists in use of intoxicants

• Unable to treat- substitute
• Cant cure- need not withdraw if pt wants
care
• Not examined/operated by other doctor
without consent

• Called by police first aid- no doctor pt reln
• Need not accept all as pts
• Can refuse, but in emergency should not
refuse
• No law to compel doctor to attend to pt
except during military necessity

3. Duty to furnish proper and suitable medicine
• Dispense by himself or prescribe
• Legible, full detailed instructions
• Wrong prescription- doctor responsible
4. Duty to give instructions
• Full instructions- use of medicines, diet
• Quantity, timing, adverse reactions

5. Duty to control and warn
• Warn pt- dangers of prescribed drug/
device
• Fails to inform- liable for harm suffered by
pt and also by third parties
• Drugs affecting functional ability- driving

• Detects a condition that impairs the pt
ability to control- duty to warn pt, family,
employer
• Warn pt about his condition that could
injure others
eg- epilepsy pt
• Reasonable forseeability

6. Duty to third parties
• Infectious disease- pt but also 3rd party
• Relatives, friends, co-workers
7. Duties towards children and adults
incapable of taking care of themselves
• Eg- apply hot water bottle for children

8. Duty to inform pt of risks
• Mentally sound pt- all relevant facts
• Any special risks- inform to pt &take consent
9. Duty with regards to poisons
• Handle carefully
• Separate bottle, label, in separate cupboard
• Immediate treatment, assist police in manner

10. Duty to notify certain diseases
• Bound to give information of communicable
diseases- smallpox, chickenpox, cholera,
plague, typhoid, measles, diphtheria, yellow
fever, food poisoning, births, deaths
• Fails- liable for criminal penalties but also for
negligence in civil suites

11. Duties with regard to operations
• Nature and extent consent
• Mistakes- wrong limb, wrong pt
• Not delegate duty to other doctor
• No experiment
• Current std of practice
• Proper sterilised instrument
• Remove swab, instrument
• Instruction to pt on discharge

12. Duties under Geneva conventions: 1949
• I- wounded or sick of armed forces
• II- ship wrecked persons
• III- prisoners of war
• IV- civilians of enemy nationality
• Treated without adverse distinction based on
sex, race, nationality, political opinions

13. Duties with regard to consultation.
• If pt requires
• In emergency
• When case is obscure/taken serious turn
• If quality of care can be enhanced
• Operation or special treatment with danger to life
• Operation on a pt serious injury in assault

• Mutilating/destroying on unborn child
• Homicidal poisoning
• Therapeutic abortion
• Woman on whom criminal abortion has
already been performed and under
treatment

• Consent tell pt is transferred or
consulting
• Relieved of responsibility- when
transferred
• Furnish all information
• Doctrine of negligent choice
• Incompetent or errant physician

14. Duty with x-ray examination
• All accidents as far as possible
• Wrong interpretation- negligent

• 15. Professional secrecy
• Implied term of contract between doctor
and his pt
• Keep secret
• Failure of trust & confidence
• Can sue the doctor if disclosure is voluntary,
resulted in harm to pt, and not in public interest
• With others without consent

• Major- not to parents/relatives fees
• Minor/insane- parent/guardian
• Wife and husband
• Divorce and nullity
• Public/ statutory body- except in notifiable
• Domestic servant
• Government servant
• Medical officer of firm/factory

• Medical officer in Govt hospital free
• Under trail convicted
• Examine for insurance
• Information about the dead
• Reporting a case in journal –identity
• Examination of dead body

Privileged communication
• Defn-
• To person having interest, or has duty
• Privilege fails- if he has no duty
• Persuade to take consent
• Not liable- protecting the interests of
community
• Examples/exceptions to professional
secrecy

1. Infectious diseases-
• Cook, waiter, food handler- enteric
infection
• Teacher or child’s nurse- tb/ infective
disease
• Til non infectious
• Refuse- inform employer

2. Servants and employee
• Engine driver- epilepsy, hyptn, alcoholism,
drug addiction, colour blindness
• Change employment
• Refuses- employer

3. Venereal diseases
• Syphilis- marry till cured
• Swimming pools- gonorrhea
• Refuse- inform

4. Notifiable disease
• Births, deaths, infectious diseases
5. Suspected crime
• Aware of commission of crime/ intention of
person to commit any offence- 39 Cr.P.C
• Murder, assault, rape, stab wound- inform

6. Self interest
• Civil and criminal suits against doctor
• Evidence about pt condition
7. Patient’s own interest
• Pt condition to other person
• Melancholia, suicidal tendencies

8. Negligence suits
• When employed by opposite party to examine a
pt who has filed negligence suit- no doctor pt
relationship can testify
9. Courts of law
• If relevant to inquiry- cant claim privilege
• Appeal, if not accepted, answer in writing- if
denied- answer
• He is protected from civil action against breach
of confidence

• Can discuss with other doctor,
paramedical staff like nurses, radiologist,
physiotherapist- better service to pt
• Physician’s responsibility in criminal
matters
• Sec 39 Cr.P.C sec 176 IPC
• Sec 202 IPC-intentionally omits
• Abortion, poisoning

DUTIES OF A PATIENT
1. Furnish all information about illness-
past and present
2. Strictly follow the instructions of doctor
diet, medicine, mode of life
3. Pay reasonable fee

• PRIVILEGES AND RIGHTS OF THE PATIENTS
Right to
1. Choose his own doctor freely
2. Access to heath care facilities
Regardless of age, sex, religion,
economic and social status
3. Dignity: to be treated with care,
compassion, respect and dignity

4. privacy: to be treated in
privacy during consultation
and therapy
5. confidentiality:
6. information: about diagnosis,
investigation treatment plans
and alternatives

7. safety: safety of procedures,
complications, side effects, expected
results
8. right to know: day to day progress, line
of action, diagnosis, prognosis
9. refusal- right to consent or refuse any
specific or all measures

10. Second opinion
11. Records: access to his records and
demand summary or other details
pertaining to it
12. Continuity: continuous care from
physician/institution

13. Comfort: treated in comfort
14. Complaint: right to complain and rectify
grievances
15. Compensation: obtain compensation
for medical injuries/negligence

• Indian-origin surgeon faces re-trial in
Australia
• Rajasthan: Sweeper chops off infant's
finger in a hospital
• Citizen Journalist Show: Mother
exposes hospital’s brutality
• When a two-month-old baby dies of burn
injuries after his body is lowered into
boiling water by negligent nurses

• Doctor to pay 15 lakh for causing
mental retardation to child
• Meerut: Man, 2-year-old girl die after
hospitals refuse treatment
• Kerala: 8-yr-old infected with HIV virus;
govt orders probe

• Professional negligence (malpraxis)
• Professional negligence
defn
• Negligence is defined as
• Due care: means
• Breach of standard of care occurs by omission
or commission
• When he does improperly or unskillfully

• Civil negligence
• When pt/relative brings civil suit in civil
court for getting compensation from his
doctor
• When doctor brings a civil suit for getting
his fees from the pt /relative who refuse to
pay alleging negligence

Liability for negligence arises if following
are satisfied
(Ingredients of negligence)
• Duty
• Dereliction: failure of doctor to maintain
care and skill
• Direct causation: failure must lead to direct
damage
• Damage: must be resonably forseable

• Injury in legal sense= death, diminishes
chances of recovery, prolongs illness,
increases sufferings

• Can’t sue if there is no damage though
negligent
• Examples for damage
Loss of earnings, expenses incurred,
reduced life expectancy, reduced life
enjoyment, pain and suffering, loss of
potency, death

Instances of medical negligence
• Consent
• Examine himself
• Inform the risks
• Immunize &sensitivity test
• X- ray

• Reading x ray
• Attend pt in time
• Wrong diagnosis absence of skill care
• Negligent management
• Substitute during absence

• Another doctor without pt consent
• Post operative care
• Instructions
• Advances in medical sciences
• Side effects

• Consultation
• Experimenting on pt without consent
• Overdose poisonous medicines
• Others to catch a disease
• Continue dangerous practice
• Iatrogenic medical complications
• Premature discharge

Doctor is not liable
• For an error of judgment
• Failure to cure or for bad result if there is
reasonable skill and care
• Reasonable skill and care, accepted
standards of medicine

To establish liability of doctor
• There is usual and normal practice
• That was not adopted
• Course adopted is one no professional
man of ordinary skill would have taken

• Expected to keep informed of changing concepts
and new developments but not expected to
know every development
• Degree of competence is not a fixed quality
• Varies according to status of a doctor
• House surgeon, general practitioner, specialist
• Judged accordingly
Locality rule

Doctrine of res ipsa loquitor
• Negligence of a physician – proved by
expert evidence of another physician
• Need not prove in case of
res ipsa loquitor
• “Thing speaks for itself”

• Applied when conditions are satisfied
In absence of negligence injury would not
have occurred
Doctor had exclusive control over injury
producing instrument
Pt not guilty of contributory negligence

• Eg-
• Burns from hot water bottle or x-ray
• Breaking needle
• Blood transfusion misadventure
• Failure to remove swabs/scissors in
surgery
• Giving poisonous medicines carelessly
• Loss of use of hand due to prolonged
splinting

• Achutrao & others v state of
Maharashtra & other
mop was left behind in the abdomen
during sterilisation
• MP Ashwin v Manipal hospital
both legs of new born were burned
permanently due to hot water bottle was
kept by nurse in OT. Heat was transmitted
to the legs of baby from metallic platform

 Doctrine of common knowledge
• Variant of res ipsa loquitor
• Negligence is not related to technical
matters which are within the knowledge of
medical profession
• Responsible for lack of application of
common knowledge
• Failure to give ATS in injury
• Failure to give fluids in dehydration

• In res ipsa loquitor pt need not produce
evidence of standard of care and specific
act or omission
• In doctrine of common knowledge pt must
prove causative act/omission
need not prove standard of care

Medical maloccurrence
• Variations can’t be explained, expected or
prepared for
• In spite of good care fails to respond and
suffer from adverse effects of drug

Novus actus interveniens
• Responsible not only for his actions but
also for logical consequences of his
actions
• Unrelated action intervening
• Accident- admitted-negligent action of
doctor
• -Disability or death

• Responsibility of death passes from
original incident to negligent action of
doctor
• An element of negligence is essential
• Causally significant

• Criminal negligence
• May arise when the doctor shows gross
absence of skill or care during treatment
resulting in injury or death by acts of
omission or commission
• When doctor performs an illegal act

• Gross lack of competence, gross
inattention
• Extreme departure from ordinary std of
care
• Shows disregard for life and saftey of
others

• Death from operation or injection of any
drug – anaphylaxis by quack= criminal
negligence
• Death due to error of judgment- not liable
• Most due to drunkenness or drug effects

• 304 (A) IPC- 2 yrs
• Eg- amputation of wrong finger, wrong limb,
wrong pt
• Leaving sponges, instruments, swabs in abd
• Gross incompetent GA
• Gross mismanagement of delivery
• Criminal abortion
• Wrong substance- loss of vision

• More serious than civil
• Prosecuted by police
• Liable to both civil and criminal negligence
by single professional act
• Eg- unathorised operation
• Criminal court - assault,
• Civil court – damages

• Sukaroo Kobiraj v Empress
unqualified practitioner operated upon a
man for internal piles by cutting them out
with ordinary knife.
• PM Desouza v Emperor
a doctor in charge of dispensary carelessly
mixed up bottles of poisonous drugs and
administered them without reading labels

• In Paris a dentist treating a young woman
with a sharp instrument which slipped and
fell into throat entered stomach
• Unqualified practitioner treated a pt with
pain in chest. Did not consult for
haemoptysis and high fever. 4th day a
medical man saw pt in pneumonia and
pleurisy. Died on 6th day

• Mr Whitefield v Hunter
Consulting surgeon Hunter erroneously
diagnosed an inoperable carcinoma and
opined expectancy of life few months
pt gave up business went to USA where
another doctor diagnosed it as
diverticulam of bladder excised it
mistake in diagnosis was not held negligent
Damages 6300 dollars

• Kusaldas v state of MP
Hakim a unani practitioner gave penicillin
injection who had no knowledge about it
and pt died- held for rash and negligent
act

• Dr Ajit Kaur v state of Panjab
a medical officer administered drip and
other medicines to force labour pains and
child was born. Died after seven days. It
was held that administration of medicines
was not the proximate cause of death.

• GO Govt Health and Family welfare Dept
1. to follow existing procedure of allowing the
police registering the complaint under sec 304 A
of IPC
2. To permit Dy SP or Ast Commisoner to become
I.O.
3. Instructions not to arrest doctors as matter of
routine and to arrest when largely justified after
consulting senior officers

DEFENSIVE MEDICINE
• Withholding of beneficial treatment to the
majority of pt because of statistical risk to
the minority
• Ordering every test, x rays

TRAIT CIVIL NEGLIGENCE CRIMINAL NEGLIGENCE
Offence No violation of law Violation of criminal law
Negligence Simple absence of skill care Gross negligence
Conduct of doctor Compared to simple std of
professional misconduct
Not compare to a single test
Consent for act Good defense for doctor Not a defence, prosecuted
Litigation Between two parties Between state and doctor
Trial by Civil court Criminal court
Evidence Strong evidence is enough Beyond all reasonable
doubt
Punishment Liable to pay damages Imprisonment

TRAIT PROFESSIONAL
NEGLIGENCE
INFAMOUS
CONDUCT
Offence Absence of care , skill or
willful negligence
Violation of code of
ethics
Duty of care Should be present Need not be present
Damage to a pt Should be present Need not be present
Trial by Courts, civil/criminal SMC
Punishment Fine or imprisonment Erasure of
name/warning
Appeal To higher court To state or central
government

CORPORATE NEGLIGENCE
• Failure of persons responsible for
providing accommodation, facilities and
treatment to follow the established
standard of conduct

• Hospital provides defective equipment or
drugs, selects &retains incompetent
employees
• Results in injury to pt to whom hospital
owes a duty
• If hospital knows or should have known
that one of the pt is likely to be a victim of
professional negligence by a doctor, the
hospital is liable even though doctor is
independent

DEFENCES AGAINST NEGLIGENCE
• No duty owed to plaintiff
• Duty discharged according to standards
• Misadventure
• Error of judgment

• Contributory negligence
• Res Judicata - cant allow same matter
again
• Limitation (Res Indicata) - negligence
suits- within 2 yrs from alleged
negligence

 CONTRIBUTORY NEGLIGENCE
• Defn- unreasonable conduct or absence of
ordinary care on the part of pt or his attendent,
which combined with that of doctor’s
negligence, contributed to the injury complained
of as a direct proximate cause and without which
the injury would not have occurred

• Failure to give the doctor the accurate
history
• Failure to cooperate doctor in carrying out
his duty
• Refusal to take suggested treatment
• Leaving the hospital against the advice
• Failure to seek assistance if symptoms
persist

• Good defence for doctor
• Can’t plead contributory negligence if he
has not given proper instructions
• Extent of contributory negligence varies
• Doctors liability from none to substantial

• Normally a partial defence
• Court will fix liability
• Burden of proof- entirely on doctor

• Dr Jyoti Vivek & others v Pradeep & others
8 yr old boy filed complaint through father
pt sustained fracture of left elbow and
shown to orthopedician which was
reduced and left elbow was put in plaster.
No relief from pain after 1 month.
Again consulted same doctor who
suggested second surgery which pt
refused

• Consulted second doctor who told
diagnosis and treatment of first doctor was
wrong so no improvement
• Court dismissed the complaint
• Evidence of second doctor that negligence
of the pt himself in getting the plaster
loosened might be one of the reasons for
deformity. Thus negligence of minor in
tampering with plaster resulted in
deformity.

• Composite negligence
• Patient suffers from injury due to negligent
acts of more than one person without the
negligence of the patient
• Can claim compensation from any one
• Defendant negligent may claim
contribution from other negligent persons

 THERAPEUTIC MISADVENTURE
• Misadventure- mischance, accident
• Is a case in which an individual has been injured
or had died due to some unintentional act by
doctor or agent of doctor or hospital
• Misadventure 3 types
• Therapeutic diagnostic experimental

• Every drug every procedure – dangers
• H/0 sensitivity
• Negative- does not rule out
• Drug with adverse effects
• Is it proper drug, any other drug
• Hypersensitivity reaction

• Excessive administration of antidote
• Prolonged use of stilbesterol- cancer
• I 131- thyroid cancer
• Electric equipment, hot water bottle- burns
• Blood transfusion misadventures
• Radiological exam
• Drugs in pregnancy

 NEOPLASIA INDUCED BY MEDICAL
TREATMENT
• Difficult to prove cause and effect relation
• Haemangioendothelioma- thorium
• Leukemia- radiation
• Thyroid, salivary gland cancer- x-radiation
• Phenacetin- UT carcinoma
• Contraceptives- adenoma of liver
• Diethylstibesterol- vaginal adenosis

 VICARIOUS LIABILITY
• (Liability for the act of another)
• An employer is responsible not only for his
negligence but also for the negligence of his
employees, if such acts occur in the course of
employment and within its scope by the principle
of respondent superior
“Let the master answer”

CONDITIONS TO BE SATISFIED
• Must be employer-employee realtionship
• Employee’s conduct must occur within the
scope of his employment
• While on the job

1. Principal doctor- negligence of
assistance
2. Doctors-each is liable for negligence
of other
3. Two or more independent doctors-
each liable for negligence of others that
he observes/should have observed &
allows it to continue without objection

BORROWED SERVANT DOCTRINE
• An employee may serve more than one
employer
• Eg – the nurse
• Lending employer temporarily surrenders
the control over his worker and barrowing
employer temporarily takes control

• Both employer and employee can be sued
• Usually liability fixed upon those at fault
and those whose control over negligent is
proved

PRODUCTS LIABILITY
• Physical agent which caused the injury or
death of the pt during treatment by doctor
• Defective, faulty, negligently designed
instrument or inadequate instructions
• Mfg responsible

• Doctor should prove mfg-departed from
standards of due care in design, mfg,
assembly, packaging, failure to test and
inspect for defects or failure to warn or
instruct
• If it was ok for few operations-not defective
• Defective due to wear and tear-
hospital/owner liable for failure to inspect,
test and repair such defects

• Burden of proof of saftey of new drug- mfg
• Mfg liable- if pt is injured due to drug
reaction due to negligence or breech of
warranty also for contamination of drug
• Once warns physician- no duty to see that
it reaches pt. Doctors duty

• If doctor prove that subsequent defect is
due to negligent design, inferior
component material or improper
assembly- mfg responsible
• Medicines – package insert /label
• Indications, effects, dosages, routes,
methods frequency and duration of
administration, side effects,
contraindications, precautions

• Mfg, seller, or anyone in chain of sale-
sued by buyer or third party whose injury
is caused by product
• Pt has to prove that defect was in
production and it was proximate cause of
pt injury

Consent in medical practice
• Voluntary agreement, compliance or permission
• Valid- given after understanding what it is for,
risks involved
• Indian Contract Act, Section 13
• “Two or more persons are said to consent when
they agree upon the same thing in same sense”

Reasons for obtaining consent
• To examine,treat,operate pt without
consent is assault – even if it is beneficial
and done in good faith
• Doctor fails to give information to pt-
charged for negligence

Kinds of consent
• Express- specifically stated by pt
• Implied
• Verbal/written

• An adult pt of sound mind who
Knows that he can agree or refuse
treatment
• Knows he has been fairly informed by
doctor as to what is to be done
Then cooperated with pt
has impliedy consented in words

Eg -pt attends hospital or
-calls doctor to his house
-Pt holds out his arm for injection
For routine practice implied consent

Full disclosure
• Facts that doctor discloses depends on
circumstances of case
• Consider all aspects of pt’s personality,
physical and mental state- disclose
findings
• Need not inform- emergency, risks that a
person of average intelligence would be
aware of
• In general-pt should be told everything

 THERAPEUTIC PRIVILEGE
• Exception to the rule of “full disclosure”
• Full disclosure result in harm to pt who is
already fearful and refuse treatment when
there is little risk
• Pt may not accept in frank psychosis
• Discretion as to facts which he discloses
• Note his decision in record,

• Reasons for doing so
• Consultation to establish emotional
disturbance
• Explain the risk to pt’s spouse or next of
kin
• Prudent patient rule
What a prudent person in pt’s position
would have decided if adequately informed
about all reasonably forseeable risks

INFORMED CONSENT
• Understanding by the pt of
• Nature of his condition
• Nature of his proposed
treatment/procedure
• Alternative procedure

• Risks and benefits in both proposed and
alternate procedures
• Potential risk of not receiving treatment
• Relative chances of success or failure of
both procedures

• In pt’s own language
• Reduces the chances of litigation
• Extension doctrine

Informed refusal
• Physician duty to disclose adequately and
appropriately to the pt, risks or possible
consequences of refusal to undergo a test
or treatment
• Pt can refuse to submit to treatment

 PATERNALISM
• Abuse of medical knowledge to distort
doctor pt relationship in such a way that pt
is deprived of his autonomy, or his ability
to make a rationale choice
• Seen context of disclosure to pt

Rules of consent
• Necessary for every medical examination
usually pt gives implied consent
• Oral consent- disinterested 3rd party- nurse
• Written consent- for proving in court for one
specific procedure- not blanket in specific
format,
• Pt informed before signs witness
foregery / obtained under pressure

• Any procedure beyond routine like
operation, blood transfusion requires
express consent and not blanket
• Explain object of examination- inform
that findings will be in included in record
• Inform pt the right to refuse and result
may go against him. Refuses- cant
examine pt

• Free, voluntary, clear, intelligent,
informed, direct and personal, no fraud,
undue influence, compulsion, threat
• In criminal cases-
cant examine without consent of victim
court cant force a person to get
examined
eg- rape, abortion victim

• Accused- refuses still examine him if
requisition is from police not below si
reasonable force
• Still refuse- goes against him

• Female- by female or under supervision
of female RMP 53 Cr P C
• Arrested person gets examined- 54 CrPC

• Sec 87 IPC > 18 years
valid consent to suffer any harm which
may result from an act not intended or
not known to cause death or grievous
hurt
• Eg- fencing

• Sec88 IPC- a person can give valid consent to
suffer any harm which may result from an act not
intended or not known to cause death done in
good faith and for its benefit
• Eg-a Surgeon operates on a pt in good faith and
for benefit, even though operation is a risk, he
cant be liable if pt dies

• < 12 yrs or insane cant give valid
consent to suffer any harm
consent of parent or guardian sec89IPC
• Loco parentis- person in charge of pt

• Consent under fear, misunderstanding of
fact not valid. By insane, intoxicated
person unable to understand the nature
and consequences is invalid
sec-90IPC

• Any harm caused to a person in good faith
even without consent is not an offence, if the
circumstances or such that it is impossible for
that person to signify consent-Sec 92 IPC
• Nothing is done in good faith if it is done
without due care and attention – Sec 52 IPC

• Any communication made in good faith for the
benefit of a person is not an offence, if it
causes harm to that person to whom it is made
–Sec 93 IPC
• Eg- if a physician in good faith tells the pt that
he cannot live long. Pt dies in consequence of
shock. No offence by physician

• Inform nature and consequences and
risks of examination or operation
obscure case- open consent
• Hostel- inmates >12 yrs can consent
• <12yrs- warden, teacher
>12 yrs and refuses- spread of disease –
leave hostel, stays in hostel- treat without
consent

• Compulsory by law eg- vaccination
Law provides consent
• Prisoner- treated without consent
• Consent for committing crime or illegal
act like abortion- invalid

• Consent- not a defence in professional
negligence
• Not disclosed to third party without the
consent of pt
• Sterilisation consent of both H and W

• Consent of spouse not necessary for
safeguarding the health of his wife
• Take consent of spouse when- danger to
life, destroy/limit sex functions, result in
death of unborn child
• Unlawful to detain an adult without
consent. Discharge against advice-
record

• Consent for kidney donation
inform procedure and risk
not accepted if there is danger to life
• Eyes after death- with consent of
guardian or legal heirs

• Body donation-
binding on his spouse of next of kin
• Organ transplantation- consent for removal
• Pathological autopsy- consent must
• Authorisation for retention of organs and parts
• Medico-legal autopsy – no consent is needed

Medical records
• To serve as basis for patients care and
continuity in evaluation of pt treatment
• To serve as documentation for
reimbursement
• To provide data for med education and
research

• To assist in protecting the legal interests of
patient, hospital and practitioner
• To follow up the patient evaluation of drug
therapy and cost accounting

• Required in cases of professional
negligence, claims of third party payment,
life insurance policies, policies for
disability, accidental deaths
• Minimum requirement of records
• Accurate, appropriate, chronological,
factual, relevant and complete

• Name age sex occupation address
• Date and hour of visiting
• Evidence of consent
• Brief history of present ,past, family
• Findings of examination
• Diagnostic aids used
• Date and hour of consultation
• Clinical impression with provisional
diagnosis

• Progress notes
• Instructions given to patient
• Complications if any
• Failure of patient to follow up
• Details of treatment including operations
• In emergency observations periodically
• Condition at the time of discharge

• No tampering
• Omission of essential details- doubt on
truthfulness of witness
• How to make a correction if any
• Good notes
• If pt refuses to accept the advice of his
doctor- record in writing

• Right to know his record
• Right of pt to keep it confidential
• If it’s harmful to pt – can avoid giving
record
• Not to any person without pt consent
• Police don’t have right unless there is a
provision for requisitions

• Can’t be used for publications without
consent
• Hospitals have right to use for statistical
• X-rays property of docotor, pt buys skill
&trt
• Maintained for 3 years

• A register of all certificates issued with
atleast one id mark
• Indoor patient -3yrs
• Routine case records- 6 yrs, death 3yrs
• Chance of litigation-25 years
• ML records 10 yrs, after that index
&summary

Medical indemnity insurance
• It’s a contract under which insurance
company agrees, in exchange for payment
of premiums, to indemnify the insured
doctor as result of claimed professional
negligence

• To look after & protect professional
interest of insured doctor
• To arrange, conduct and pay for defence
of such doctors
• To arrange professional assistance like
pre liitigation advice
• To indemnify- in respect of loss or
expense

EUTHANASIA (MERCY KILLING)
• Producing painless death of a person
suffering from hopelessly incurable and
painful disease
• Types
• Active: positive act to end life. Act of
commission by giving large doses of drug

• Passive: discontinuing or not using
extraordinary life sustaining measures to
prolong life. Act of omission
• Eg- failure to resuscitate a terminally ill or
hopelessly incapacitated pt or defective
newborn infant

• Voluntary- at the will of pt
• Involuntary- against will of pt
• Nonvoluntary- incapable of making wish
• Eg- irreversible coma, infants
• Opium / narcotic drugs.
• No legal sanction
• Article 21 of constitution of India
Right to live but not right to die

• Netherlands first – legalise 2002. > 12 yrs
• Northern Australia
Belgium, Switzerland Thailand
• Doctor assisted suicide- US assembly
• Advanced directives- ‘Living will’

• Aruna Ramchandra Shanbaug (1 June 1948 – 18 May 2015), was
an Indian nurse who was at the centre of attention in a court case
on euthanasia after spending 42 years in a vegetative state as a
result of sexual assault.[1]
• In 1973, while working as a junior nurse at King Edward Memorial
Hospital, Parel, Mumbai, Shanbaug was sexually assaulted by a
ward boy, Sohanlal Bhartha Walmiki, and remained in a vegetative
state following the assault.[2] On 24 January 2011, after she had
been in this state for 37 years, the Supreme Court of
India responded to the plea for euthanasia filed by journalist Pinki
Virani, by setting up a medical panel to examine her. The court
rejected the petition on 7 March 2011. However, in its landmark
opinion, it allowed passive euthanasia in India.[3]
• Shanbaug died of pneumonia on 18 May 2015 after being in
a persistent vegetative state for nearly 42 years.

MALINGERING (SHAMMING)
• Conscious planned feigning or pretending
a disease for the sake of gain
• Soldiers/policemen
• Prisoners
• Businessmen
• Workmen
• Beggars
• Criminals

• Dyspepsia, intestinal colic, ulcers, spitting
of blood, opthalmia, diabetes, rheumatism,
lumbago, aphasia, sciatica, vertigo,
epilepsy
• Nasopharynx injury
• Anal vaginal mucosal injury
• Excess digitalis
• Large amount of carrot
• Chronic coumarin

• History from relatives, friends, note
inconsistency
• s/s not of any disease
• Observe without his knowledge

HUMAN EXPERIMENTATION
• Declaration of Helsinki
• Clinical research with professional care
• Non therapeutic clinical research
• Risks, benefits, needs,
• Animal experiments, pt interest
• Not merely for experimentation
• Not merely to find out efficacy when one
already exists

Animals in research
• For advancement of knowledge for saving
or prolonging the human life, reduce the
sufferings and combat the diseases
• Animals lowest on phylogenetic scale with
scientific valid results should be preferred
• Minimum number of animals should be
used to give valid results

• Alternatives not involving animal test
should be given consideration
• Avoid or minimise pain and suffering to
animals
• With sedation or anesthesia
• Euthanasia on animal if it cant perform
functions

THE WORKMEN’S COMPENSATION ACT,
1923
• Provides payment of compensation to
workmen for injuries sustained by them by
accident, arising out of and in the course
of employment
• Death- dependents
• Any disease during work- injury by
accident
• Amount depends on death, permanent
total/partial disability

• Disability is physical defect or impairment
and the resulting actual or potential
deterioration of social or economic status
• Inability or incapacity to meet established
standards of efficiency and social
occupational or economic responsibility.

• No compensation-under the influence of
alcohol, willfully removed safety guard or
device
• Get himself examined free of charge

• Indusrtial disease/injuies- medical
evidence
• Keep all records
• Role of preexisting natural disease
process
• Diagnose, evaluate presence & extent of
disease

CONSUMER PROTECTION ACT, 1986
(AMENDED IN 2002)
CPA COPRA
• For better protection of interests of
consumer
• Covers all private, corporate & public
sectors
• District, state and national commissions
• Defect or deficiency of service

• Defect- fault, imperfection, short coming in
quality, quantity, potency, purity or standard
• Deficiency- fault, imperfection, short coming or
inadequacy in quality, nature and manner of
performance
• Speedy and simple solutions to consumers
• Empowered to give relief of specific nature,
award compensation, prescribe punishment for
non- compliance

Consumer dispute redresal agencies
• District forum- 3 members, headed by rtd
district judge ,upto 20 lakhs
• State commision-3 members, serving /rtd
high court judge, 20 lakh- 1 crore
• National commission- 5 members, rtd
supreme court judge, > 1 crore

• Multiple benches for speedy disposal of
cases
• Mandatory for state govt to establish state
commission and district fora.
• Manner of complaint
• By consumer/ recognised consumer
association, one or more consumers,
central/state govt
• If consumer dies- legal heir
• Shall be charged a fee fixed by st govt

• Procedure:
• Hearing as early as possible
• Refer a copy of complaint to opposite party
within 21 days, directing him for reply within 30
days
• Lawyer not necessary
• Settled on the basis of evidence provided
• District forum =civil court sec 192, 228 IPC
• No adjournment, if so reasons, recorded, order
for cost of adjournment

• Allegation proved- order the opposite party
to remove defect, replace goods, provide
cost to parties
• Punitive damages when necessary
• When proved frivolous- complaint
dismissed, complainant ordered to pay
cost to opp part not more than 10000.

• Both can appeal within 30 days to state
commission further to national commission to
supreme court within 30 days
• Before appeal deposit 50% order / rs 25000
whichever is less in state commission and rs
35000 in national commission to prevent
harassment to consumers
• Attach property of opp party- to make sure that
complainant gets relief
District Collector for recovery of amount

• Limitation period
all consumer courts shall not admit a
complaint unless it is filed within two years
from the date on which the cause of action
arisen
• Doctors and hospitals render service as
medical practitioners liable for negligence
and sued for compensation under CPA

• Highlights of the Supreme Court of India judgment in
Indian Medical Association
Vs
V.P. Shantha and Others Date of Judgement 13/11/1995
As a result of this judgment, medical profession has been brought under the Section 2(1) (o) of CPA, 1986 and
also, it has included the following categories of doctors/hospitals under this Section:
1. All medical / dental practitioners doing independent medical / dental practice unless rendering only free service.
2. Private hospitals charging all patients.
3. All hospitals having free as well as paying patients and all the paying and free category patients receiving
treatment in such hospitals.
4. Medical / dental practitioners and hospitals paid by an insurance firm for the treatment of a client or an
employment for that of an employee.
It exempts only those hospitals and the medical / dental practitioners of such hospitals which offer free service to
all patients.
Further, this judgment concedes that the summary procedure prescribed by the CPA would suit only glaring cases
of negligence and in complaints involving complicated issues requiring recording of the evidence of experts, the
complainant can be asked to approach the civil courts.
Also, this judgment says that the deficiency in service means only negligence in a medical negligence case and it
would be determined under CPA by applying the same test as is applied in an action for damages for negligence
in a civil court.
As a result of this judgment, virtually all private and government hospitals and the doctors employed by them and
the independent medical / dental practitioners except primary health centers, birth control measures, anti malaria
drive and other such welfare activities can be sued under the CPA.

• Service rendered to pt by consultation,
diagnosis, treatment at govt hospital,
health care centre, dispensary or at non
govt hosp or nursing home where charges
are to be paid by all, cant afford –free, fall
within purview of act
• Free of charge for all whether you are able
to pay or not, whether govt or private-
does not fall within purview of act

• No change in laws governing claims for
compensation for negligence
Same as civil court
Liable to pay compensation to pt
No scope for testimony by medical
experts- miscarriage of justice
Frivolous cases also

THE TRANSPLANTATION OF HUMAN
ORGANS ACT, 1994 (AMENDED IN 2002)
• Aims
-Stop live unrelated transplants
-In live related transplant, defines donor and
recipient- genetically related except when
approved by committee
-Accepts brain stem death criteria

• Brainstem death declaration team
 Medical officer in charge of hospital
Independent medical specialist
Neurologist or neurosurgeon
Doctor in charge of patient
• Human organ as any part of human body
consisting of structured arrangement of
tissues, which if wholly removed cant be
replicated by body

• Bone marrow transplantation is outside
purview of the act.
• Kidney, heart, liver , lungs, pancreas ,
eyes, ear drums and ear bones
• Donor organ removal at any place
• With his authorisation or that of person
who is lawfully in possession of body
• Unclaimed after 48 hours

• Preserved by scientific methods
• Not for any purpose other than therapeutic
• Explain- effects, complications, hazards to
donor and recipient
• Compulsory registration of hospitals –
removal, storage and preservation of
organs

• Govt appoints a committee- grant of
registration, renew, suspend or cancel
registration
• Act provides provision of appeal,
punishments for unathorised removal of
organs or of commercial dealings thereof
or contravention of any provisions of act

• Punishments- removal of name for 2 yrs
for first offence and permanently for
subsequent offence or imprisonment for 2-
5 yrs & fine rs 10000
• Cognisable when complaint is lodged

THE PROTCTION OF HUMAN RIGHTS ACT
1993
• Constitution of NHRC, SHRC
• Better protection of human rights
• NHRC may enquire a case on complaint,
or suo-moto,
• Summon any person for evidence or for
production of document
• Encourages nongovernmental organisations
• One year is limitation period

• 1993-any instance of custodial
death/torture or rape within 24 hrs, has to
be reported to NHRC by district magistrate
/sp
• 1995-third degree methods in
investigation- violation of rights of human
of citizens of India

• Arrested- inform relatives or friend
• Compensation to next of kin in custodial
death liability of state and police

• Videography of autopsy- when there is suspicion
of foul play in preliminary inquest or complaint of
foul play
• Cassette to the commission

“IGNORANCE OF LAW EXCUSES NO
MAN”
JOHN SELDON

1. Regulation of standards of Medical
education in India is done by
A. Indian Medical Association
B. Medical Council of India
C. Indian medicine Central Council
D. None of the above

2. All are examples of infamous conduct
except
A. dichotomy
B. practicing under the influence of alcohol
C. advertisement
D. consulting another doctor in homicidal
poisoning

• 3. all are ingredients of medical negligence
except
A. duty
B. dereliction of duty
C. damage
D. documents

4. Minimum age for giving consent for
general physical examination is
A. 18 yrs
B. 15 yrs
C. 12 yrs
D. 7yrs

5. The Section of IPC which allows the
examination of patient without consent is
A. 87 IPC
B. 89 IPC
C. 90 IPC
D. 92 IPC

• 6. The punishments for criminal
negligence is
A. Compensation
B. penal Erasure
C. Warning notice
D. Imprisonment

• 7. All are examples of privileged
communications except
A. informing employee in infectious
disease
B. in courts for self defence
C. Notifying diseases to concerned
D. informing to curious on looker

• 8. All are duties of doctor under Geneva
conventions except
A. wounded or sick of armed forces
B. People injured in road traffic accident
C. ship wrecked persons
D. prisoners of war

• 9. all are defenses for doctor in negligence
except
A. contributory negligence
B. Doctrine of Res Ipsa Loquitor
C. Res Judicata
D. Res Indicata

• 10. guidelines for human experimentation
were laid down in
A. declaration of Tokyo
B. Declaration of Oslo
C. Declaration of Helsinki
D. Declaration of Sydney

• 11. All are types of consumer courts
except
A. District Consumer forum
B. State consumer commission
C. Taluka consumer forum
D. National consumer commission

• 12. Which of the following does not come
under the purview of Human Organ
Transplantation Act
A. heart
B. kidney
C. bone
D. liver

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