Need of Legal

Conlro
Unit-1
The past few decades have witnessed a series of high-protile inquiries that cast a
harmful eloud over the medical profession and provoked demands or strict regulation.
Somehow, a balanee must be struck whereby the public can be conlident that doctors practise
competently. with due regard to ethical and technical standards, yet the regulations are not so
overwhelming. The current regulatory framework explores exclusion from the workplace,
serious professional misconduct and seriously deficient performance. The Medical Council of
India deals with a large number of regulatory cases each year, of which small proportions are
appealed. As well as providing valuable insight into judicial thougnt, Case law in this area is

helpful in understanding the balance between social policy and medical regulatión.

Medical profession has its own ethical parameters and code of conduct. However,
science.
negligence by doctors has to be determined by iudges who are not trained in medical
reasonableness
They rely on experts' opinion and decide on the basis of basic principles of
and prudence. There is often a thin dividing line between the three levels of negligence; lata

culpa, gross neglect;levis culpa, ordinary neglect; and levissima culpa, slight neglect. The
level of negligence depends on the entire context - which includes the place, the time, the
individuals involved, and the level of complications. The difference between medical
negligence and medical error is well-settled, and the principles are well-founded being clearly
laid down in numerous cases by the Supreme Court. Thus, there is a need to appreciate this
diiterentiation by the societ so tinat doctors do not get indicted for impractical reasons

The duties which a doctor ovves to his patients are a duty of care in deciding whether
to undertake the case, a duty of care in deciding what treatment to give, and a duty of care in
the administration of that treatment. A breach of any of these duties gives a right of action for

negligence the patient. A doctor should know that the plaintiff (patient) in order to succeed
to
in the action of establishing negligence must show that the 'damage would not have occurred
but for the defendant's (doctor) negligence; or the defendant's negligence materially
contributed to or materially increased the risk of injury; or if the claim is for negligent
have accepted the
nondisclosure, had he/she been adequately informed he/she would not

treatment.

A victim can seek any of the following actions against a negligent medical

professional.
a) Compensatory action: Seeking monetary compensation before the civil courts, high
court or the consunmer dispute redressal forum under
the constitutional law, law of
Act.
torts, law of contract, and the Consumer Protection
under the Indian Penal
b) Punitive action: Filing a criminal complaint against the doctor
Code (IPC).
bodies like Indian Medical
c)Disciplinary action: Moving the Drofessional the health-care
Council/State Medical Council seeking disciplinary action against
provider concerned.
 Hunan
dReconmendatory action: Lodging conpla before the National/State
Rights Commission sceking compensation.

Accountability of Medical Professionals

t has been argued by the medical
assoCation in Shantha's case (1996, AIR 550) that the medical practitioner should be kept out
of the purview of the Consumer Protection Act 1980 as there is scope for disciplinary action
under the Medical Council Act for violating the code of medical ethics and for the breach of
1he
duty to exercise reasonable care and skill in rendering medical service to the patient.
Supreme Court held that the medical practitioners are not immune firom a claim for damages
for negligence. The faet that they are governed by the Medical Council Act and are subject to
the disciplinary control of the medical council is no solace to the person who has' suftered due

to their negligence, and the right of such person to seek redress is not affected.

Accountability of Hospitals: Hospitals liability with respect to medical negligence can

be direct liability or vicarious liability. Direct liability refers to the deficiency of the hospital
1tself in providing safe and suitable environment for treatment as promised. Vicarious
iability means the liability of an employer for the negligent act of its employees. An
empioyer iS responsible not only for his own acts of commission and omission but also for
the negligence of its employees, so long as the act occurs within the course and scope of their
employment.
Common Errors by Medical Professionals; Patiènts sue because of a feeling that
they were not heard, that their needs were not attended to, and that nobody seemed to care,
and as a result, a bad outcome resulted due to a mistake or negli ence. Some of the instances
where erors do happen by medical professionals are as follows:

a) Avoidance: Compassionate gestures count. If a hospitalized patient has a bad

outcome, some physicians may avoid malking rounds in the presence of relatives. It is
important to let the patient and their caregivers to know that as a treating doctor their
problems are understood. lt is a god practice to maintain eye contact while
addressing the patient and put a comforting hand on the individua>'s arm (comforting
touch)
b) Defensive medicine: It is better to avoid
practicing defensive medicine. Particularly
when affordability is an issue, victim is very likely to complain. Moreover, it amounts
to medical malpractice (a medical
practitioner intentionally advising unwanted
investigation).
c) Failure to communicate: Communicate clearly and effectively. Take time to ensure
your patient understands their diagnosis, trestment, and medication plans, and then
check their understanding by asking them to explain it back. This ensures instructions
are
properly followed and demonstrates your care toward patient.
d) Failure to diagnose: Failure to diagnose is the number one reason a physICian gets
Sued for medical malpractice. A techn0-savvy patient may give, explain, ask more
iniormation or psychologically less sophisticated patient may withhold the
information and make diagnosis difficult.
 Failure to identily a complication: Ifa eertain complication is a known risk, it
should be on the consent form for the medial procedure. Flowever., the consent form
need not list every single complication that has ever occurred for that proccdure.
Often there are mistakes in communicatima the complications. If, for example, the
complication is known to occur 10% of the time during a given proceduro but the
consent form states that it occurs only 1 of the time, then the consent form was

wrong.
fInadequate follow up: There are instances when tests results are not received by the
es
ordering physician. On other occasions. natients do not follOw through with tests as
directed or the results come in are filed auay before the phySICian reviews them, and
the patient is not briefed about the findinos. It is essential that physicians and their
statts are able to track the status of these orders to make sure that none are overlooked
involves referrals to
or forgotten. Another aspect of care needing better folloW-up
specialists. Every step has to be documented not only for prevent1ng medico-legal
issues but also for good patient care as well.
his/her concern
g) Patient time: The time spent allowing the patient to fully explain
and likeability. The
determines the physician's ability to show concern, empathy,
with the patient, the less likely will that
longer the quality time a physician spends
physician be sued.
medication, a physician should be aware
h) Prescribing errors: Before prescribing any and
is taking, including over-the-counter drugs
of all medications the patient the
reinforce the importance of taking
alternative medicines. Physicians should
prescribed. Patients should be advised that if they feel any
medications only as
should immediately contact their
medication is not having its intended elfect, they
interactions is by working in
prevent io druginadvertent
physician. An important way utilize instead
concert with hospital pharmacists.
Avoid handwriting prescriptions and
electronic medical recording with electronie prescribing.
medical science has witnessed
times,
i) Prevention of Medical negligence: In recent
remains very much
However, health-care delivery
exponential technological progress. the result of not from a lack
Evidence shows that errors are often
a human endeavour.
unexamined habits and the
mindless application of
of knowledge but from the
emotions.
interference of unexamined
to develop
It is vital to the survival of physicians
) Asset protection and indemnity: medical liability insurance. Not
asset protection plan,
in addition to professional
an to make a living in
lawsuit reduce the ability
physician's
only does a malpractice both earned and invested
or devastate
medicine but also it adversely impact
can
such as personal or
assets. There are
two categories of professional indemnity
the doctor and his qualified
of the risk of liability of
individual: This takes care
institution, nursing home,
or
an
omissions policy: This covers
assistant. Errors and of a hospital/institution,
is the owner
with its staff members. Ifa doctor hospital/institution is
hospital along the
take both individual and error policy
as
it is recommended to case.
to medico-legal
entity and often can be made party
a
a separate legal
has to be
that medical negligence
Burden of Proof: The court
has held the opinion the patient. must
k) medical negligence,
established and cannot be presumed.
In cases of is correspondingly
burden of proof
establish her/his claim against the doctor. The a doctor. A doctor can be held
on the person who alleges negligence against
greater
 abie for
negligenee only il onepiguilly Sic/he is guilty of a failure thal no
cam
doctor with ordinary skills would be l cting witlh reasonable care. he
burden of proof of negligenee. erclessi
ligenee. C nsufficiency generally lies with the
complamant. The law requires a highct sdiii of evidence than
lactof. Bimalesh
n otherwise to support
an
allegation of a
negligeneeig Chatterjee
caSe, t was held
the resultant
and
that the omus of proving negligence anu
deficiency in service
remote, it is not considered clearly
was
eomplainant. When the damage is
0n the o
mmediate result of medical as an
negligence.
1)
Change of attitude: Change is the unchu
change can prevent medical errors and rth in human life. A readiness to
awareness and attitudinal e quality care of a doctor. Self-
changes Iound to be
recommended. They are as follows: beneficial and
Always to do best: A treating doce
gets in the way of doing Ould not let fatigue or anything else
your work. iule no one is
mistakes that end up in perfect, many medical
conscientious.
malpract suits can be
avoided by being

Apology: When physicians are honest about

the
patient, the overall cost of medieal medical errors and apologize to
However, it depends on the type of error malpractice is reduced in the end.
(gross and real), motive
(non-mischievous), and situational infliuences of the victim
(indefensible).
Blaming others:
One should refrain
for adverse outconmes. The latter from blaming other health-care providers
reasonable care. They ean be called can happen despite everyone providing
on evidence either as a
expert. wiiness or as an
Clinical guidelines: Adherence
improve quality care and reduce clinical guidelines
to
is an effective
variation in care. way to
been Clinical
systematically developed nationally and
guidelines have
decision-making (practice of globally to assist clinical
claims and in
court, these evidence-based'medicine). In medical
negligence
provided they are the productguidelines
of a
may act as a source of
nformation,
They can be seen as
normative
recognized body and are deemed reliable.
care at the standards and are used
time of the index clinical event and also to
as
explicit standards ol
which
questionable practice was in line with
a assess the
degree to
accepted standards.
Documentation: f the
happened, it is difficult treating
to
doctor does not document
something
thoroughly can help to understand whatit occurred. Charting accurately and
prove
Will help im
answering the happened to the patient. In addition, 1t
questions raised about duty of
a
deposition
months or alter when called
care tor
their memory for the yearS
ar event
has occurred. One cannot
facts. rely on

documentation, from
Regardless of the system used, the purpose
legal perspective, is
a or
completely record the
given care
to
always to accurately
and
care.
Documentation has legal patients, as well as their response to tnat
accurate, truthful, and credibility when it is contemporaneous,
appropriate.
Empathy: Patients want to believe
they are the most
day and the doctor focuses 100% onimportantWhile
doctor will see that person ua
them. this is
not feasible, taking
from their time to
think a patient and understand
build abetter perspective heclu inike
can
ecoming the condition
relationship.
they have a posilive
morc
empathetie
People:are less likely to suc a physicianphysician and
relationsh
mship, even if something gocs wrong, with whom
Expeetations:
after
Medical
malpractio.
malpractice aselawsuits
an
inedent for a
are not
quick. It
could take
to to be resolved. years
through long
go a
Malpractice
process. It could take process including discovery,
cases have
which is the
maipraclce case, one needs
months or
this phase alone. While in theinvestigation
midst of a
to stav focused
support system needs to be other areas of
on
your life. The
avoided. The medical mohilized and obsesSing over the case
should be
some malpractice stress syndrome is real. It is
degree by all physicians
who are sued.
experienced to
Hospital policies: If the
phvsician folows
treatments and
protocols, they are less likely tohospital policy regarding
get into trouble. If the
physician diverts from regulations and
the facility is less hospital rules in managing the patient,
likely to defend.
Keeping updated: While most physicians stay up to date with the latest
continued medical education
increasing advances programs/conferences/workshops/symposia,
in healthcare make it important to know what is
happening in the world of
medical news. Often medical news is reported in
consumer publications and the Internet. Often patient may discuss what is in
the social media, the
ability to discuss about those news with your patients will
reinforce their confidence even though
they may not be practiced by the
treating doctor.
Merit of the case: Not
everyone who ses has a case. There are many
instances where a doctor is served with a lawsuit and the case either never
goes to trial or the doctor wins and is not found negligent.

Potential litigant: A reasonable doctor should consider every patient as a

potential litigant. It is to keep a doctor in constant awareness to stick to a
prescribed standard of care and avoid any adventurous attempt. A doctor
should not ignore any allegation in any form (oral or written) and should be
able to handle allegations with clear and firmness in an intelligent and
sympathetic manner.

Risk management: When a doctor is working for a hospital, the defendant

doctor should notify risk management department of the hospital whenever a
notice is served. Risk management employs lawyers who specialize in medical
malpractice. The lawyer will help the defendant doctor through the process.

Contributory negligence: When a patient by his/her own want of care,

contributes to the damage caused in the process of treatment then they are said

to be guilty of contributory negligence. For example, if the patient refusing to

the doctor or indulging in

carry out the remedial treatment recommended by
exacerbates the damage. When there
activities forbidden by the doctor further
in a
two or toward the patient resulting
1S negligence of more persons
or
They are Jointly
particular damage, it is called composite negligence.
severally held liable for the damages.
 conseni

Informed consent: Inforne hensInt that the patient specilically

Cedure.
COnsents to the proposed medn Informed consent is more than
give ed consent to a medical
patient
Just
the
consent.
health-care
For a
provider tinfor
must
he
procedure,
paticnt about all of the risks and
Complications that may reasonr ebly
eur
, the during that procedure,
however,
minor they may be. Furthermoic
an
Calng
doctor should mention about
alternatives treatments availabic nat happens
if no
treatment is done.
forme abor
Only after a patient is truly informe DOut the
potential risks of a medical
procedure can a patient give in
doctor should understand that the pat
Onsent to the procedure.
The treating
has given
on t consent to the
and not to all
medical
rors
while
ment. The failure to obtain procedure
consent can be a formcii dical neiigence
of medical gence or
or
informeed
action for medical may give rise to a cause
battery. o

m)Indian Penal Code: No human being

specialist could make a mistake in CCt and even the most renowned
It has been held detectine gnOSing the true nature a disease.
in
Honourable Supreme different judgments National Commission ofand
Court that a charge by the
from a charge OOCSSional
stood on a different negligenee against a doctor
The IPC describes in footing Oegenee against a driver of
following sections below regarding this a vehicle.
ditference:
IPC Section 52:
(Good
faith" which is done or faith). Nothing said to be done or believed in
is

believed withut due eare and "good

implies genuine belief on the part of the attention. Good faith
ommission would be in he hest doctor that his/her act of omission
or
intet the
detendant (doctor) to that
patient. The onus lies on the
prove h0 ly thie good intentions but also a
reasonable skill aund care are
exereisedtonthe discharge
IPC Seetion 80:
of duty
1S done
(Accident in doing a law ful
act). Nothing is an offense which
by accident or misfortune and
ithout
knowledge in the doing of a lawful act in a lawfulany eriminal intention or
and with manner by lawful means
proper care and caution. Accident
knowledge or intention of causing the evil efiect. implies without the prior
IPC Seetion 88:
(Act not intended to cause death, done
faith for by consent in good
person's benefit). Nothing which is not intended to cause death is an
Oifense by reason of
any harm which it may cause, or be intended
to cause, or
be known by the doer to by the doer
be likely to cause, to any person tor
Whose benefit it is done
in good faith, and who has given a consent, whether
express or implied, to suffer that ham, or to take the risk of that harm.
Section
highlights the importance of acting on good faith and with intormedThe
consent of the
patient.
S e e t i o n 89: It is similar to IPC Section 88 with the point of view of
COsentin case of children below 12 years and persons with a mental disorder
where a guardian is
authorized to give consent.
Section 92: (Act done in gocd faith for benefit of a person without
OuSent). Nothing is an offense by reason of any harm which it may cause to a

Peson for whose benefit it is done in good faith, even without that person's
 consent,if the circumstances
are such that it is impossible for that person to
signity consent, or i person is incapabie OI giving consent and has no
guardian or other person in lawful charge of him/her from wlhom it is posible
to obtain consent in time for the thing to be done with bencfit. In all such
cases, it 1s prudent to involve another senior colleague in making the decision
and recording in detail the ines: feafion or circumstances under which the
decision was taken.

I P C Section 93: (Communication made in good faith) No communication

made in g0od faith is an offense h reason of any harm to the person to whom
it is made if it is made for the henefit of that person. However, the doctor
Would be prudent enough to ensiure that the communication is based on
Verilabie 1acts of the case, ina oood faith for the benetit of the person it was
made and in view of the delicacy of the matter, conveyed approþriately in the

presence of spouse/relative/guardian.
the
Criminal Procedure Code Section 174: This section does not preclude
to prosecute the doctor
for
fight ol aggrieved relatives of a deceased patient
Criminal liabilities under IPC Section 304A (whoever causes the death of any
to culpable homicide
not amounting
person by doing any rash or negligent act
sliall be punished with imprisonment of either description for a term, which
or with both), it prevents
doctors trom
may extend to 2 ycars, or with fine,
unfortunate death of a patient. It also
being arTested imnmediately after the
offers doctors an opportunity for being assessed by
their peers for any of the

alleged professional lapses.

n) Immunity of Government Doctors: The Natioral Commission by its judgment and
treatment
of medical
order has held that persons wlho avail themselves of the facility
and the said facility offered in the
In goverment hospitals are not "consumers"
service "hired" for "consideration." It has
government hospitals cannot be regarded as
does not constitute
been held that the payment of direct or indirect taxes by the public
"consideration" paid for hiring the services rendered in the government hospitals. It
in the Central
has also been held that contribution made by a gov'ernment employee
Government Health Scheme or such other similar scheme does not make him a

within the meaning of the act.

"consumer
Media trials: In the current situation, media is often referred as the fourth
of a case
pillar of the democracy. However, it has no right to present the facts
in an unfair and prejudicial manner. A doctor cannot become a victim of
malicious or defamatory reporting. A doctor should not be silent and should
rebut the allegations. The doctor can take help of their professional association
to convey the facts and support to resist a trail by media.

.Prevention of harassment of Doctors: Taking the judicial notice of incidents

where the doctors are being harassed by the police in the guise of investigation
and unnecessary delay in the medical evidence by way of frequent
adjournments or by eross-examination, the court held that unnecessary
harassment of the members of the medical professional should be avoided.
They should not be called to the police station to unnecessarily interrogation
or for the sake of formalities. The trial courts should not summon medical
person unless the evidence is necessary, even if he/she 1s summoned, an
attempt should be made to see that the people in this profession are not made
 aW courts have to respect io
unncces
tine
waste
Wt
nd
lo profess
medical
n the
peopie Warned ii c e olTicials not to arrest or harass
Court has :the parameters laid down in Jacob
cene
The Supreme
facls clearly
doctors
unless the
threat S
sgto the police oficers that if they «id
Even a es have to face legal action. The
Mathew's
case.

orders they
ihe
" osecute a medical professional ior
tollow
these
1ot
on to $ay
Supreme
Court
went
aw it be
be shown thal the accused did
criminal
under Soig g which
which in the given tacts and
negligence
faiied to do So
Sometiing
or ofess t his o
ordinary
rdi. senses and prudence
prfessi
medical RZard taken by the accused doctor
Circumstances no do.
failed to
would have
done o r which resulted was most like!y
such à naturethat ti y that
should be of to remove apprebension
Court pca
imminent." The Supreme UeIt duty to a suffering person.

medical peopie
from disci
prevents

provided
rend e a t service to the society
is capable ot relationsluip
The practice of medicine The cordial
skill are obser y doctors.
etficiency, and due to the
due care, sincerity, Medicine has
one drastic changes
Law and prolession,
between doctor, patient, il C
Cialization of the noble
*dical profession, resulting advancements
corporatization ofn. hh Althouh ranid
sit of the innoci
'

and the
n'uch against the ietter

become*)ols tor the

patients, tie ave equally
better diagnosis and
treatment of the massive Cillnge. ihe
law is undergoing a
commercial exploitation of
the patients. Medicai is tar trom
miscouduct and negligence
to professional
development of law pertaining
medical
in not cover
the entire field ot
are not adequate and
satistactory. The legislations
miniuized or avoided by takung
steps to
Lawsuits for medical negligence can be care,
negligence. developing patient-centered
to policies and procedure:,
keep patients sat1sfied, adhering comprehensive
and knowing ways of defending against
malpractice judgments. Having
sOClety.
professional iability, Insurance is a necessity
in the presert-day litigious