'l

15

Pmn;R TO i\ lAl-.'.E I./\ \VS 1\ NI> IJIRECTIVI•: l'IU NC ll'LES

Th\' Dirtr ti, r !' ri 11 cipk~ 11r SLitr 1'11lic:, i~ contained in l'arl IV or l: hl'
C,i n~t ituti nn (. \ r1i ch-s ](1-Sl) . Thr aim or thl' Dirccli vr Principles was to ~cl up certain
~\h' i:i l and l' \' OlHl mic go:i ls before the law makers to brin g about social change in the
co un tr~ in dirl'ction of grea ter social and eco nom ic equality.

HEAL TH UNDER THE DIRECTIVE PRINCIPLES :

Under Part IV of the Constitution outlining the Directive Principles of State Policy,
there arc a number of tacit references to the health development of the people. In fact, the
fu ndamental rights and the Directive Principles constitute a conscience of our Constitution. It
is true that the Directive Principles of State Policy are not justiceable suggesting that the state
can excuse itself from implementing the various prov isions under the head of Directive
Principles. However, the contents of the Directive Principles which indicate the concern and
the commitment of the Indian Constitution fo r social welfare and equality do provide a
definite direction for the policy making in the country. Clause No.38 under the Directive
Principles refers to the state requiring to secure a social order for the promotion of welfare of
tl1e people. Certain principles of policy to be fo llowed by the state refer to the health and
developm ent of the people. For example, it is said that the state shall, in particular, direct its
pol icy towards securing "that the citizens, men and women equally have the right to an
adequate means of livelihood, that the health and strength of workers, men and women and
1he tender age 0f children are not abused and that citizens are not forced by economic
necessity to enter the avocations unsuited to their age or strength : That children are given
opportuni ties and fac iliti es to develop in a healthy manner, and in conditions of freedom and
dioni tv and that childh ood and youth are protected against exploitation and against mora\ and
m:teria l aba ndonment." Such poli cy clearly shows responsibility and a concern that the state
should have rJwards physical and psychological health of the Indi an citizens irrespective of
their socia l economi c and demographic circumstances.

Clause No.4 1 under the Directive Principles states as follows : "The state shall , within
the limits of its economic capacity and development make effective provision for securmg the
.· I t t orl< to education and to public assistance in cases of unemploymen t, old age, s1ck-
11 g 1 0 w ' · · 1 h th t
. d disablement and in other cases of un-deserved want." The prov1smn a sos ows a ,
nes! an 'ble the state should strive to assist the citizens by physical and financtal
as 1ar as poss i H d th · , date'
• · · th ·tuations of old age sickness and disablement. ence, un er· 1s man II as
provision 111 e si ·
• · ·ct the public health and medical care-preventives as we
the state 1s requJred to provi e
curative and promotional se rvices in the fie ld of health .
.. Cl e No 42 of the Directive Principles. there is a reference .to·t the provision
U ndc1 , aus . . . . 1· th t . t simply
. d·t· f work and maternity relief. Tl11S imp ies a I is no .
for JUSt and human con I ions O ' · · 1 d the
. 1 . l quires the state to intervene but it is a so un er
the sickness or disablement w ,ic l re .. d .
. . . d the normal experiences of the citizens un er certam
nom1al situations ot work an ·c1 t·h ded assistance Thus the state has to
ti t the state should prov1 e e nee . ,
circumstances 1a .. ditions in the place of work. Such conditions
intervene to secure for these c1t1zens, proper co n
I
c,t' w ork .should be ava ibbl c 10 all c1•t1 zens irres pec tive or thei r gender ' regi on ' lang
. uage
' '
nrn111ty race etc Ev~ ti I . . . . al occu rren ce fo r wom en, the maternity puts
corn ' · ~ 1.:n 10ug 1 it is a norm
· le need s to
upo n them 0 Tc·1t stress ,11 I I
, ' 1 c me n I a lens 1on, und
er thes e circ ums tanc es also , the sta
. · ~ ' "
stan ce for ante-na tal
may take the form of fina ncia l assi
pro\ 'tde the succ ours a nd relief. This to a num ber of fact ors -
g the facil ities fo r suc h ca re. Due
:lllc! POS\-n:1tal care and prov idin the sam e leve l of
oric aL soci o-ec ono mic , gene tic etc., all the cit izen s do not have
hiS\
chi ldre n of the soci o-
th statu s. It is obse rved that the
nutr i tion al stat us and he nce, heal unt of the poo r
are high ly pron e to dise ase on acco
..:-co n o mic ally dep rive d com mun ities soci o-ec onom icall y
ition inta ke. The sam e prob lem is seen in the case of wom en of the
nutr
dep rive d sect ions of the popu latio n.
to raise the
cy pres crib es as the duty of the state
The Dire ctiv e Prin cipl es of Stat e Poli th. Und er Clau se
l of nuh ·itio n and the stan dard of livin g and to imp rove p ublic heal
leve l reco rd the raisi ng of
Prin cipl es, it is said that the state shal
N o.4 7 in the chap ter on Dire ctiv e rove men t of publ ic
leve l of nutr ition and stan dard of livin g of its peop le and the imp
the requ ired to take step s
It is, in this cont ext that the state is
heal th as one of its prim ary duti es. oses of into xica ting
cons ump tion exce pt for med ical purp
to brin g abou t ' Proh ibiti on' of the indeed is a clea r-
s of whic h are inju rio.u s to heal th . This
drin ks and of drngs, exce ssiv e dose of the citizens
of the state in prot ectin g the health
cut artic ulat ion of the frate rnal role the state with the
This impl ies a positive inter fere nce of
acco rdin g to the Indi an Con stitu tion. the citizens is
ion or restrictio n of the freedom of
consum er sove reig nty. Such inter vent s, w ith regard to
ired in the case of wha t are kno wn as the publ ic good s or merit good
requ s are injurious but
consume r from the use of thes e goo~
whi ch , not only the effe cts for the rd to intox icating drinks,
for othe r citiz ens. With rega
ther e are also nega tive exte rnal ities rs and to thes e _o ther
such inju riou s effe cts for the cons ume
drug s, smo king etc. whi ch lead to ly to contain its
the state has to inter vene effe ctive
than thei r con sum ers as well as,
con sum ptio n.
I Y-~~-
J.(l..., ~ N,.!k;,cc

RIGHT TO PRJ\'.-\CY

. To
. this date· thn'
' ' . .-v=-t- ·
- "~ ~ no unl\·ersa · · of th.: ng
11y acceprabl e defiinlllon ·
· ht to pmac:i- fr
l~ a c0ntmuo~h c!\'OI• ino ,,., • h .
. · = c,-nc,pt 1, ose nature and extent 1s lamelv context dn ven. There
are numerou, .as"'""'t, ·o th · .. L · , · - • ·
.__ - ,,,. · · •' ng.ut lo pm·acy. eacn different from L~e other !!! terrr._) of the
CUlU!ilSlance m which r1 ·- . . 1.,d 8 , 1 pm• ac,· hov. c·, ~r. is to dare. the mo,t <!l!;:rd::d
c . " ,r, • Of. ~ . 001 \.
1acet of 1h1s Yasth •x -· . - h Th :. · . . .. e
. . ' · pan~I\ e ng t. e pm ac,· 01 er one 5 u,1r, bod\ induuinu the uroans
2enet1c mat('rial and bio'oo· -l r-. · = 0
d_ . 1 1d 1
:: C
-L.. • • • . ,
unct1ons uwt make up one s health i; an mncrem nghr that
·

~e-s not: as m the_ case of other forms of pri1·ac;, such as communication or tran.s.mional
~m:c~ ·. ernan~te tro1:1 the State. It 1s a ri~h! ,hat ha.s irs fou ndarions in the .\atura/ Liw
~on,epuors ol Th., Rioh; •., 1 L· ,1;, .. L ·-h I · -'-
• , • , • :: • " •'-· ",:i- . a ttlougi, regulated b:-, the Stare can at no point be
taken a,. a, o, 1, e.,c,:-,,1 undt'r ,, IP' , . rd• . . .. • .. . .
1 _ · · • ,.. · '·· -~- -i ,m~tancc, or " ,cJp;:r;ec1m! R1:rhr to l1f.: of a
.arge, number 01 peopk - -

. The deliberation leading 10 ihe conmuc1ion oi a uni\·er,alh· applicabr~ R;-L 1, ro

PnYarv has J . h . . . • ~ '~!
th • up unti. OO\\ 0~ I!\ a on!) been m rerms of its mlerpretarion as an l'.Xtension of
e Fundamental ~ght to Life and Liberty as guaranteed under ..\nicle 2! as 1reli as 1he
freedom 0_f exp~ession and moYemem under Articles 19( Ii(a) and (b/ of the Consrituuon of
India. While this ~y be a \·alid imerprelaticn. ii narrows the ambit of the ri!!.hr as one rhat
~ ?nl~· be _exerc1sei..! against the Staie. The Righi to pri\·acy howe\·er ha'; much Jarner
imphcattons m spheres that are often remo\·ed from the Stare. There is rhus an im~ndi;,!!
need to create an effic1em and d:.irable ~trucrur.: of Lal'. and po/ic, thJI r~iufarc, rh:
prorecuon of pri, ac-y in I n.:Hirurions that may not ah, av, be age ms of tht Stale. -
fr is m l~!S rega rd 1ha1 1he follo.-·ing an~I~ ,1s sIUdie; the e:>.i; ting ,·on;:eption;, oi pm·;ic) in
the Healrncare secror. Ir Jim, w .-rud~ !he e.-.i,tmg m.:ch2ni, m, of rm a~~ prote,tion :i.ni.i
_!heir prag,11_:mr application in.:-, c:ryd~y pr::ctic,; _Furth.:r. 1i d.:-t.:rmm.:, dclinimc poli-:~ ,;3p,
m lb(: ::.\ isung frame11 ork and .:nd.:c1•. ou.--s to pro•, 1<l.: d1i:cti\,: re.:ommendations to not onh
redre5s these shortcomings bJi also create a system that i~ efficient in its fuiiilmem uf in·~
lilrger objecliYe of the a,,U2lizauon of the Right lo Pri1a,~ at an indl\iduaL ;.rate and
institutional len~I.

Importance: The Indian Healthcare sector although at par 11 ith inwmarional ,tandards in i~
methods of diagnosis, treatment and the use of contemporary technology. is s[ill nascem in
the nature and extent of its interaction with the law. There are a number 0f aspe~t, of
healthcare that lie on the somewhat blurred line betw~n the interest ofrh.: pu~lic and th.: ~ok
right of the individual seeking treatment One such aspect i, the slowl~ e, oh ing right to
privacy. The numerous facets of this right ha\e come to the fore larg~l:- through unique c:ise
Jaws that arc rdlecfr, e of 3 d~ namic ,ocial ,trucu.m:. one thJt ,eek~ ro rccr•r.ci!.: the ,t•C !1•
economic rights that once go\ emed sociery wnh ind i\ idual mrerem that it ha, slowly come
to re-.ilize. The rig.ht of an indi·, iJuaf ru Jisdvse the narure of his disease. rhe lib:.'.rty of a
woman not to be compelled to undergo a blood test. the bodily auwnomy 10 dl'cide to bear
children ur not, the de~i5ional pri, acy \\ itb r.:gard.s to the taminarion uf a preg.nanc:, and th~
custodial rights of two indi\·iduals to their chi ld are cenain conrenrious aspects of heaithc;;.rt
that ha, e constructed the porous interface between !he righ, 10 pri, a,y .ind the need for
medical treatment. It is in thi, conte-.;t th:it this study aims to de!l·e into the exisiing basic
_;;tructure of domestic kgislation, case laws and regulations and their subsl'qu~nr applicativ;;
in order ro determine important gaps in the formulation of Law a.rid Policy. The study rhus
auns w drnw rckvanl cnndusion~ tu till these gaps through recommend ations suun:cd from
international b1.·st pradicc in order to constmcl a broad framework upon which one c;in b.1sL:
rurnrc policy co11sidcr:itiun~ and :unendments to the ex isling law.

PriYacy Violations stem from policy and information gaps: Violations in the healthcare
swor that stem from policy formulation as well and implementation gaps include the
disclosure of personal health infonnation to third parties without consent. inadequate
notification to a patient of a data breach. unlimited or unnecessary collection of personal
health data. collection of pcrsonal health datJ that is not accurate or relevant. the purpose or
rnlkL:tmg data i:; nut spcc1lied. rdusal lo provide medical records upon request by dient.
pro,ision of personal health data to public health. research, and commercial uses without de-
identification of data and improper security standards, storage and disposal. The disclosure of
personal health information has the potential lo be embarrassi ng, stigmatizing or
discriminatory. Furthermore. various goods such as employment, life, and medical insurance,
could be placed at risk. if the flow of medical information were not restricted.
Di~closure of personal he.11th information i~ permitled and does not amount to a violation of
privacy in the following situations: during referral, when demanded by the courr or by the police on
a written requisition, when demanded by insurance companies as provided by the Insurance Acr
when the patient has relinquished his rights on taking 1he insurance. and when required for spccifir
-provisions of workmen's compensation cases, consumer prorcction cases, or for income tux
aU\horit'ie, . 1.hse;1,e regis\ra\ion, communicab le d1,ease inws1iga1iuns. rnccin:llion srudies. ur clru.
!!
adver.;c event reporting

Privacy & Public health: "Privacy" is a dynamic concept that has been attempted lo be
explained but has still not been defined exhaustively. With the change in time and advanced
technology, the concept of privacy has seen severe metamorphi c phases. Considering the
Indian scenario, said concept has not been expressly mentioned as a fundamental right. This
issue was raised before the Hon'ble Supreme Court (SC) in several cases and \ms been
considered in an important case of K. S. Putlaswamy (Retd.) ,, Unio11 of India wherein
'Aadbaar Card Scheme' was challenged on the basis that the collecting and compiling the
demographic and biometric data of the residents of the country to be used for various
purposes is in breach of the fundamental right to privacy embodied in Arride 2I of the lndian
Constitution. In this matter, the court agreed that the right to privacy is an inherent right of an
individual. Further, the SC held that the Unique Identity Authority of India (UIDAl) cannot
transfer any biometric data without the consent of the person. Through several judgments,
several rights have been co~ered under the umbrella of the right lo privacy, including
telephone tapping, personal intimacies uf the home. marriage. family, motherhuod, etc. With
such pronouni.:ements, the awareness, and consciousrn:ss among citizt:ns and the public have
increased which often creates a conflict leading to a hindrance in the smooth functioning .

In the present times there is an outbreak of the infectious disease caused by the
coronavirus (CoV), viz., COVID-19 (SARS Cov-2) which is also declared a pandemic by the
World Health Organization (WHO). In the era of globalization, it is impossible to bind even
the infectious diseases within any of the nation's boundaries, and so is in the case of CoV.
Currently, the only effective measure to combat the virus is to adopt social distancing. In this
context, as a preventive measure, the use of surveillance mechanisms to keep track of
infected individuals and potential patients present in the surrounding seems to be an effective
approach. In order to transmit such information. various mobile and web applications have
I
I been develop. ed
lo detect in . t' tw .
ec . . .ns in · th e nearby area o f an • . .
/~ u. aJ th~11 also r~ndcrsuch as
al erls
~n ~'.~
nary meas tries have dc. vi sc
, cr cn t tcchnofrloom fever to
g,cs
as a prccaut10 thenna/'r~. D1tfcr~nt counin . in g
identify suffer
using AT-bCasCed ' ca m er as in fe ct ed g :n a c, ~wd those ea , an d Taiwan havc
. , · . o f th e hina, S o u th K or
'e , ,ewmg ~ V footages k ti person. C d p
..
os 1t1vc. Similar ·
ly
lication.s to t,·ac le mo vem en t f J
0 t le perso n d et ec te
f
developed app .,ts mtel/' . • f · · · ,s '?cation data for a period o
es th ~rt,z en
Israe I has allowed igenbce hagenci _ ~ e us~ o its st the virus, but the same is bein
g
models m ig h t g ~gam Jaws.
30. days. These en cr o ac h . e e/p/u/ m ~ght,n pnvacy and the data pro tect ion
to be mg upon the righ
t to
widely disputed n
. la u n ch ed a tr acking applicatioIt
e G
this reagard '..th . overnment o f downloaded by more than 90 m
India (GOT) also illion people.
ln ar n . ry, health condition, elc.
named "A o h t w h ic h h as now bee . trav el h is to d
. . g y
r
S
to
e
p 'd ce rt am
• d at a
.
rn clu d m g ag e,
on sw it ch es on bluetooth an
1 eqmre s th e u . se rovi e later used when
a pe rs
case o f one o f
them
d h an d ca n be se r an d in
1s st o re d th er such u
an ~ e sam~ O n ce th e u se r co ntacts with an o
en cy an d th ; user as wel
l.
ic es . rn ed ag
locatmn serv ap p Ji cation alerts the
conce
,
being posi ti v e, th e
ri gh t to life an d person al liberty
om the tal
ri v ac y is o n ly a derived right fr ection is a violation o f fundamen e
Since right to p cu lt to ju d g e w h et h er
data coll
gi ta l IDs for each u
se r and, th
tively d if fi sing u n iq u e di b u t are on\y
so it is compara ation maintains anonymity u ib le by the users themselves
rm sure and
rights. The info e n the two users ar e n o t ac ce
ss
n o w th e le g ality o f this mea
data shared b e
tw e
al / th es e, it is important to k
if ia b le . F o r in stance, in a case
rv e r. Despite on o f our rights
o r is ju st
sa m e was not
fo u n d
st o re d o n th e se o n is a vi o la ti
in g his fi an ce o f th e
d that
a co ll ec ti p o si ti v e, in fo rm 1s have also hel
whether th is d at u n d to b e H IV
ding H IV th e co u1
and
was fo cy . Further, regar to prevent the spread o f disease
w h e re a person e ri g h t to p ri va
o f th necessary in ord
er the
to be a violation fe c te d p er so n is it u ti o n al . L o o king together at
the in nst
e considered unco health risk posed to mankind by
identification o f is re g a rd w il l b
n in th at the
so any action take above instances, it can be said th Therefore, the right to privacy may
present situation
and
a n th a t p o se d by HTV/AIDS. li c health as states
arc
ay fie rc e r th impro v in g p u b
COVTD 19 is a w o b li g a ti o n o f protecting and rt ic le 4 7 o f th e Constitution of
be superseded
by the y duties (A ay
as among its primar the risk of life m
keep public health lic m ay be exposed to n ,?{
ob ligated to
tting a sid e p ub lic h ealth pub
(Article 21 o f the Constitutio
o r se erived) right to
life
India). Ignoring t (n o t ev en d
get devoid o f th
eir direc
India).
/
- fS.r1E)Q1 N fi Of-H,~ U
~ re MJ.zi-\Q
(!)
Ncl'd of Ll•gal Control

Unit-I
The pas\ fc\\' dccJdes have witnessed
a series of high -profile inquiries that
ham1ful cloud o,·er !he medical prof cast 3
ession and provoked demand s fo r stric
Somehow. :i bal:mce mus\ be struck whe t regu lation.
reby the public can be confident that doct
compe1en1ly. wi1h due regard to ethical ors prac tise
and technical standards, yet the regulatio
0 YCf\\ helming. The currenl
ns are not so
regulatory framework explores exclusio
n from the workplace,
~.:-rious professio nal misconduct and serio
usly deficient perfonnance. The Med ical
India deals with a large number of regu Council of
latory cases each year , of which small
appealed. As well as providing valuable prop ortions are
insight into judicial thought, case law in
helpful in understanding the balance betw this area is
een social policy and medical regulatio
n.
Medical profession has its own ethical
parameters and code of conduct. How
negligence by doctors has to be determin ever,
ed by judges who are not trained in med
They rely on experts' opinion and deci ical scien ce.
de on the basis of basic principles of reaso
and prudence . There is ofte n a thin divid nabl enes s
ing line between the three levels of negl
culpa. gross neglect; levis culpa, ordin igen ce; lata
ary neglect; and levissima culpa, sligh t
leve l of negligence depends on the entir negl ect. The
e context - which includes the place, the
individuals invo lved, and the \eve\ time, the
of complications . The difference betw
negligence and medical error is well-sett een medical
led, and the principles are well-founded
laid down i!'l numerous cases by the Supr bein g clearly
eme Court. Thus, there is a need to appr
differentiation by the society so that doct eciate this
ors do not get indibed for impractical reaso
ns.
The duties which a doctor owes to his
patients are a duty of care in deciding whe
to unden ake the case , a duty of care in ther
deciding what treatment to give, and a duty
the administratio n of that treatment. A of care in
breach of any of these duti es gives a righ
negligence to the patient. A doctor shou t of actio n for
ld know that the plaintiff (patient) in orde
in the action of establishing negligence r to succeed
must show that the 'damage would not
but for the defendant's (doctor) negl have occur~ed
igence; or the defendant's negligence
contributed to or materially increase materially
d the risk of injury; or if the claim
nondisclosure, had he/she been adeq is for negligent
uately informed he/she would not have
accepted the
treatment.
A vict im can seek any of the follo
wi ng actions against a negligen t med
ical
professional.
a) Compensatory action: Seeking mon
etary compensation before ~he .civil cour
court or the consumer dispute redressa ts, high
l forum under the const1tut1onal \aw,
torts, law of contract, and the Consum er law of
Protection Act.
b) Punitive action: Filing a criminal
complaint against the doctor under the
Indian Penal
Code (IPC).
c) Disciplinary action: Moving
the professional bodies like \ndian
Cou ncil/State Medical Council seek ing Medical
disciplinary action agai nst the heal th-ca
provider concerned. re

1
 d) Recommendatory act · t be rore tl1\,;, Na• tion·1l
ion: Lodging co mp Iain '
/Statc Ilum~n
Rights Commiss ion seekin
g compensation.

Accountability of Medica . . ~
l Professionals: ll has been ,iigu1,;cI by the medical
ass ociation in Shantha' s case . . .. ner should be kept
( 1996, AlR 550) that the out
of the purview of the Co medical piactitto . .
nsumer Protection Act 198 . for c\is cip , .
lm ary a1;t1o
under the Medic . . . 6 as the re ts sco pe n
al Coun cil Ac . .
· . t for v10latm g the code of med1ca 1et h. .1nd for the breoc 11 011•
duty to exercise reasonable care and ski.ll . . ics •
d.
Supreme Court held that m renderin g me 1ca1, sct.Vt\: · 'e 10 the patient. Th e
the medical practitioners
for negligence. The fact tha are not immune from a cla
t they are governed by the im for <lm:iages
the disciplinary control of Me dic al Co un cil Ac t and are subject to
the medical council is no
to their negligence, and the so lace to the per son wh o has· suffe red clue
right of such perso n to see
k redress is not affected.
Accountability of Hospita
ls: Hospitals liability with respec
be direct liability or vicari t to medical m:gligence can
ous liability . Direct liabil
itself in pro viding safe ity refers to the deficienc y of the ho spi
and suitab le environme tal
liability means the liabil nt for tre atm ent as pro mi sed . Vicariou
ity of an emplo ye r for s
employer is respo nsible the neg ligent act of its
not only for his own act em ploye es. An
the negli ge nce of its em s of co mmi ssi on and om
plo yees, so long as the act iss ion but also ror
employment. occ urs within the co urse
and scope of the ir

Common Errors by M~d

\\,e'j we re no t he ard, tha
ica\ Professionals: Pati'ents sue because of
t the1r needs were not att a feeling that
and as a resu\t, a ba d ou ended to, and that nobody
tcome resulted due to a mi seemed to care,
where errors do happen by stake or negligence. Some
medical professionals are of the instances
as follows:
a) Av oid an ce: Compass
ionate gestures count. If
outcome, some physicians a hospitalized pa tient has
may avoid makin g round~ a bad
important to let the patien in the presen ce of relativ es.
t and their caregivers to kno It is
problems are understood w that as a treating doctor
. It is a good practice the ir
audressing the patient and to maintain eye contact
put a comforting hand on while
touch). the individual's arm (comfort
ing
b) Defensive medicine:
It is better to avoid practicin
when affordability is an iss g defensive medicine. Particu
ue, victim is very likely to larl y
to medical malpractice complain. Moreover, it amoun
(a medical practitioner int ts
ention ally advising unwant
investigation). ed
c) Failure to communic
ate: Communicate clearly
your patient understands and effective~y. ~ake tim e to
their diagnosis, treatment, ensure
check their understanding _and med1c_at1on plan~, and
by asking them to exp lam 1t then
are properly followed and back. _Tins ensures mstruct10
demonstrates yo ur care tow ns
ard patient.
d) Failure to diagnose:
Failure to diagn ose is the
sued for medical malpract number one reason a physic'
ice. A techno -savvy patien .an gets
info1mation or psycholog t may give, explam,h~s~dmo
ically less sophisticated ~e
information and make diagno patient may wit o t
sis difficult. e

2
11

t
n risk , it
n: If a certain complic ation is a know
e) Fail ure to identify a complicatio cons ent form
ical procedure. How ever, the
should be on the cons ent form for the med proc edure.
that has ever occurred for that
need not list every single complication ple, the
ng the complication s. If, for exam
Often there are mistakes in communicati the
of the time during a give n procedure but
complic ation is known to occur I 0% the cons ent fo rm was
1% of the time, then
consent form state s that it occurs only
wrong.
ived by the
f) Inad equ ate follow up: There are
insta nces whe n tests resul ts are not rece
as
patie nts do not fo llow thro ugh with tests
ordering phy sician. On other occasions, , and
awa y before the phys ician reviews them
directed or the results com e in are filed that phys ician s and their
n gs. It is esse ntial
the patient is not brie fed about the findi are over look ed
orde rs to make sure that none
staffs are able to trac k the status of these refe rra ls to
i ng better follow-up invo lves
or forgotten . Another aspect of care need l
ted not onl y for preventin g medico-lega
specialists. Eve ry step has to be documen
.
issues but also for goo d patie nt care as well
concern
ing the patient to fully ex plain his/her
g) Pati ent time: The time spent allow likea bil ity. The
concern, empathy, and
determines the phys ician's ability to show likel y will that
ds wi th the patient, the less
longer the quality time a phys ician spen
phys ician be sued .
awa re
ing any med icat ion. a physician should be
h) "Pre scri bing erro rs: Befo re pres crib ovcr -the- coun ter drug s nnd
ing. includ ing
of al\ medications the patient is tak orce the impo rtanc e of wkrn g the
reinf
alternative med icines. Phys icians shuuld feel an?' in,
should .~e advi~ed tha_t if they
medications only as prescribed. Patients I
t, they should immediately contact_their
I

medication is not having its intended effec

verte_nt drug interactions 1s by_ ~ork mg m
phys ician. An impo rtant way to prevent inad wnt mg prescnpt1ons and utili ze mstead
hand
concert with hospital pharmacists. Avoid
elec troni c prescribing.
elec tronic medical reco rdin g with
witnessed
i) Prevention of Medical negligen
ce: In recent times, medic~! scien ce ?as
h
ever, health!care delivery remams very muc
exponential technological progress . How res~ lt of not !rom a lack
err~rs ~re often the
a human endeavour. Evidence shows that
mind less appl icati on of unexamin ed habits and the
of kno wledge but from the
inte rfere nce of unexamined emotions. lop
d indemnity· It is vital to the surv ival
of phys icians to deve
. · · 1 1·ta6·1 ·ity ·msurance . Not
t
tec ion. an I • 1ca
. dditi on to professio nal med abili ty to make a livin g in
I
J') Ass et pro the phys ician's
an asse t prot ectio n p ~n, ma . d . d
d alpr act1ce lawsmt re 1
uce t
. deva state both earned and mveste
on ly oes a m
~ or nal indemnity such as personal or
medicin e but also it can adve ~se y ; m~a qualified
assets. There are. ktwo categon es o_ lp1of elss1bo_I l.tty of the doct or and .his
of the n s < o ta e: or
. . . .
md1v1dual: This ta es care_ . ,. This cove rs an institution, nur_sm~ hom stttu t1on,
. th owner of a hosp 1tal/m
assistant. Erro rs .and. on11 ss1 ons pol1c) . or is e!icy as the hosp ital/m . . . n .is
ff mbe.rs.· If a doct d st1 tut1o
hospital alon o with its sta me error po
I b th ind1v1dual. an egal case.
o
it is recommended to ta <e o can be made a pa1·ty to medico-l
·ty d often d. I neoligence has to be
a separate legal entl an d h ·nion that me ica o the pat1. ent must
hel t e op1 medical neol igence,
k) urd en of Proof: The court has
: stablished and_ cann?t be pres m~ ~ eed} :c:rs e~~ : burd en of
0

proo f ; corr: s:i;~~ ~!i~

1

ence against a doctor. A octo r

establish her/his claim agamst - eolig
greater on the pers on who alleges n "'
3

,.u , ,, .,, I
I f~ n 1 , , ._ ' • '
 ..
. r.
•lt c/ hL' is gt1illy u r,ilt1rc that no
li.1hk fo r lll't!lig cnc·c , " Ill pr
onl_~ ii u11i.;l 1l,b. uvc t Ii :1t ~ . . I r'l:·1
so
"' ' I •ire The
nab c c, .
d\1c·1111· \\' II· Ii i,1-_ !,n: ··y ·ld ls \V Oll C nui lty ul' i!' ,1ct1ng
n :; . C~ w1l l ' ··ally lie
.
bmdcn ot 1w11t1 1 o t' . 11·ocncc c1rc c~sm.:.·ss or insu ,1c1 cy gene1, . s with th e
I .~ r·c: 'en
ne g , I ·wise to supp ort
co mpbinnnt. The law ::, . • '.
· . requ ires a h1 gh e1
• . •• c1arcl
111 or evi<le nce than .ot ,e1. .
it was held
,111 :ilkgat1 on ol- • • . · st ::i do~t. I
ctor. n- g·11na' lc•sh .Chaltci]ee case ,
ne
that the on us of pr gl~ge1 1c-e a~ a111. , • I I
ovmg negligence an
d th
- ·. ultant defic
iency Ill ser vice. was c car Y
on the compbm. nn ~ ies as an
t. When l11e d·c1m. ae is too t.emo te, it is not co nsidered
immediate result of a::,
medical negligence
.
. I) Ch:rnue of attit . .
ude: Chane:e 1s the unchange able
. h in hum an ltfe. A . diness to
i:,
change can preven ~ trut . iea
•
t medical er ro d
rs an impr . ·o ve th e qu 1
a ity car
e of a doctor. Se
lf-
awareness and
attitudinal change d t be benefic . l d
recommended. Th
ey are as follows:
s ha ve been foun ° ia an

• Always to do
best: A treating do - i'. ti ue or
0 ets i~ the way
ctor should not le anything else
b of doino your wor t ia g
mistakes that en k W hile no one is perfect , c1·cal
many meb 1.
- b .
d up 111 malprac· . .
. · ded
conscientious. tice smts can be by emg
avoi
• Apology: Whe
n physicians are ho
the patient, the ov nest about medical
erall cost of med errors and apologiz
H ow ev er, it depend ic al malpractice is e to
s on the type of er reduced in the en
(non -mischievous ror (gross and real d.
), and situational in ), motive of the vi
fluences (indefe ns ctim
• B la m in g othe ible ).
rs: O ne should re
for adverse outc fra in from blaming othe
omes . The latter r health-c are provid
reasonable care . ca n happen despite ers
They can be calle everyone providin
ex.pert. d for evidence either g
as a witness or as
an
• C lin ic al guid
elines: Adherence
improve quality ca to clinic
re and reduce varia al guidelines is an effective way ro
been systematical tion in care. Clinica
ly l guidel ines /Jave
decision-making (p developed nationa lly and globally
ractice of evidence to assist clinical
claims and in cour -based'medicine) . In
t, these guidelines medical negligence
provided they are may act as a sour
the product of a re ce of information ,
They can be seen cogniz ed body and
as normative standar are deemed reliable.
care at the time of ds an
the index clinical ev d are used as explici t standards of
which a questionabl ent and also to asse
e practice was in lin ss the degree to
e with accepted stand
• Documentation: ards .
If the treating do
happened, it is di ctor does not do
fficult to prove it cument something
thoroughly can help occurred. Charting
to underst and what ac
will help in answer happened to the patie curately and
ing th e questions ra nt . In addition, it
a deposition month ised about duty of ca
s or years after an re when ca lled for
their memory for event has occurred.
the facts. Regardles One cannot rely on
documentation, fro s of the system us
m a legal perspe ed, the purp ose of
completely record ctive, is always to
the care given rn pa accurately and
care. Documentatio tients, as well as th
n has legal credib eir response to th at
accurate , truthful, an ili ty when it is co
d appropriate . ntempo raneous,
• Empathy: Patie
nt s want to believe
doctor will see that they are the most im
day and th e doctor portant person _that
focuses 100% on the
m . While th is 1s

4
 the condition
not feasible, taking time to think like a patient and understand
physician and
from their perspective can help in becoming more empathetic
less likely to sue a physician with whom
build a better relationship. Peopl e arc
they have a positive relationship, even if somet hing goes wrong .

Expec tation s: Medical malpra ctice laws uits are not quick.
It could take years
•
cases have
after an incident for a malpractice case to be resolved. Malpractice
investigation
to go through a long process including discovery, which is the
the midst of a
process. It could take months for this phase alone. While in
d on other areas of your life. The
malpractice case, one needs to stay focuse
over the case should be
support system needs to be mobili zed and obsessing
experienced to
avoided. The medical malpractice stress syndrome is real. It is
some degree by all phys icians who are sued.

Hospi tal policies: If the physician follows hospital

policy regarding
•
troubl e. If the
treatments and protocols, they are less likely to get into
ing the patient,
physician diverts from regulations and hospit al mies in manag
the facility is less likely to defend .
th e latest
• Keeping updated: While most ph ys icians stay up to date with
rkshop s/symp osia,
continued medical education progra ms/co nferences/wo
know what is
increasing advances in healthcare make it import ant to d
news is reporte m
happening in the world of medical news. Often medi ca l
wh:,t 1s_ rn
consumer publications and th e Intern et. Often pati ent may disc uss I
patient s 11 ill
the social media, the abil ity to discuss a bout those news w ith your Je;
ecl by the
reinforce their confidence . even though they may not be pract1c h i1
:o
treating doctor. Ii

Merit of the case: Not everyone who sues h~s a case.

There. are many
• TJ:
either never
instances where a doctor is served with a lawsmt _and the case )

goes to trial or the doctor wins and is not found neghgent.

pati~nt as a
• Potential litigant: A reasonable doctor _should consider every
m constant awaren ess to stick to a
t t' al litigant It is to keep a doctor
any advent urous attemp t. A doctor
po en_:b d t d~rd of care and avoid or written ) and should be
prescu e s an . . £ (oral
1 ent and
intellig
should not ignore any ~llegati~~~ : 1:~ a:: firmness in an
able to handle allegat10ns wi
sympathetic manner.
. . doctor is working for a hospital, the defend ant
• Risk manageme~t. ~hen a nt de artment of the hospit al whenever a
lize in medical
doctor should notify nsk manageme 1 p lawyers who specia
. . d R' k management hemp oys
notice 1s serve . is . d £ dant doctor through the process .
malpr actice . The lawye r will help t e e en
t' t by his/he r own want of care,
are said
• Contributory negligence: WhJ1: ~h~a :.~~ess of treatm ent then they
le, if the patien~ refusin g '.o
contributes to the da'.nage cause . m e ~or examp
d d by the doctor or mclulg mg il1
to be guilty of contn butory neghgenc .
e. When there
carry out the remedial treatment recom m::a;erbates the damag
patien t resul~n :g rn a
activities forbidden by the doctor fu~her toward the
is negligence of ~o _or
articular damage, it is ca e cor
~r; pe~;: :ite negligence. They are JOJ11tly or

p . lly held liable for the damages.

severa

5
•

- . ,, 'Ill l lll ' ;l\l, \I I ,' I t\,r \l.lli c nl .pru l11 ,ill\
\
• ln fnn ncd 11111,rn,l' •I "P'
l'\'1 1'l' lll :
' I
• •
, ,,nl-i'11ll- Id \ht' 111,•pn~c(\ tl1 ClI\t::l 1 . , \u re I11I111 111e,(l 1. 11 11'-<: I\\ '" 111u1 ~· 11,rn
p1 11u;1 . . , \ \ . 11w1.h1. :il 111 01.c: d111c ,
, ,-, ,,,·n \ h- ,, ., pa11· c111 1 · - 11 ,1 1,nrn.:d 1.·011 ,1.:n " '1
.111 1 11 11. !:!-" 1.: , '- . II ,f !ht n 'lk'i ,ind
tlh· h,-:, lth -,·an - pr,w 1dn 11111 ~1 111 1· . ti 1 C 1n\ 1c 11 \ ,ll/1)11 1 ,I I
rnm '
,,,1111,11,·,1111.m, lh:11 111:1 ~ rca~nn:1l' I . . . dun ll\!. 1\ia1 pt.m .1., . I r, htJ\' /CVU ,
u 1.:.
v i,t Lll t . ~ . . ·I I I
111111 ,,r 1hc, 111:1v l 'l' . I·-url I\Crtn ti • 11· .. ,t111u
mcn\ion ahl}U\
· urc . H.: d01. \IJ1 s wu l
· L, -
a\tc rna1 i,c~ t1T:l\ t1\L't1\S ;1\':u. bbk
. .
1,at 1,.,pp . ·ns ti no 1rctt tn11.:•1,, 1 1·, d1.1 nc ·
. r :rnd w c • . I . ·k · 1· ·1 m1.:d1n\
Onh :lftt' a patt.en\ 1 .s · •
trulv 1nlu rn1t:1, .I ct. l1uu t the 110\ cnt1 :1 ri s :- n- - '
·
,l roce dure c:111 a pat1. cnl Q\.\'C · . , '
. ,., ·, no
,
mfo nm .d c,m~.c, nl lo t\, c I1roccclurc . 1 11c 111., 1 o
doc tor shou ld und erstand- 1hat the . . . , . . ·nl 10 thc p1oc . .,l ,
c( urc
pa11cnt has givl \\ 1.onS1.: .
.
and not to a \\ m edi cal erro rs w hile . Tl f· . \ . f
on tre:i.tme nl. , e ,\I ur e to
.
obt:1111 m orm e1.1
con sent can be a form of med ,cal . . . give n se to a caus e o
f
neg11gen ce 01 may
acti on for m edic al battery .

m ) Ind ian Pen al Code: No

hum an bein g is perf ect and even
spec ialis t cou ld mak e a mis take
in detectin g or diag nosi ng the tru
the mos t _ren own ed
\
It has bee n he ld in diff eren t judg e natu re ot a dise ase.
men ls by the Nat iona l Com mis
Hon our able Sup rem e Cou rt that sion and by th e
a cha rge of prof essi ona l ne glig ence
s tood o n a diffe rent foot ing from aga inst a doc tor
a cha rge of neglige n ce aga inst a
The IPC des crib es in foll owi ng driv er of a veh icle .
sect ions belo w regardin g this diff
eren ce:
• IPC Sec tion 52: (Go od faith ) .
Not hing is said to be don e or b elie
fait h" whi ch is d one or b eli.e ved ved in "go od
with out due care and atte ntio n.
imp lies gen uine beli ef on the Gooci fai.th
part of th e dqc tor that hi.s/h er act
com mis sion wou ld be in the bes of omi ssio n or
t inte rest of th e pati ent. The onu
def end ant (do ctor ) to pro ve s lies on the
that not only the goo d in tent
reas ona ble skil l and care are exe ions but a lso a
rcis ed for the dis char ge of duty .
• IPC Sec tion 80: (Ac cide nt in doin
g a law ful -act) . Not hing is an offe
is don e by acci den t or nse whi ch
mis fort une and with out any crim
kno wle dge in the doin g of a law inal inte ntio n or
ful act in a- law ful man ner by lawf
and with prop er care and caut ul mea ns
ion. Acc iden t imp li es wi thou t
kno wle dge or inte ntio n of caus ing the prio r
the evil effe ct.
• IPC Section 88: (Ac t not inte nded to
caus e deat h, do ne by con sent in
faith for p erso n's ben efit) goo d
. Not hing whi ch is not inte nded
offe nse b y reas on of any harm whi to caus e deat h is an
ch it may caus e, or be inte nde d by
to caus e, or b e kno wn by the doe the doe r
r to be like ly 10 caus e, to any pers
w hos e ben efit it is clon e in goo d on fo r
faith , and who has give n a cons ent,
exp ress or imp lied , to suff er that whe ther
harm , or lo take the risk of th at
sect ion high ligh ts the imp orta nce ha1111. The
of acting on goo d fa ith and w ith
con sent of the pati ent. info rme d

• lPC Section 89: It is sim ilar to IPC

Sec tion 88 with the poin t o f view
con sent in case of chil dren be low of
12 year s and pers ons wi th a mental d
whe re a gua rdia n is auth ori zed to isor der
give con sent.
• IPC Section 92: (Ac t don e in gou d
faith fo r ben etit o f a pers on w
cons ent) . Not hing itho ut
is an offe nse by reas on of any harm
whi ch it may caus e to a
p erso n for who se ben efit it is don
e in goo d foitb , even with ou t that
p erso n's

6
~~~·

I that it is impossible for that person to

coons_ent, if the circun:stanccs are such no
incapable of giving consent and has
: 10 nifr COl~Sent, or if tha_t person is from whom it is poss ible
rd
"'ua ia_n
1
°othe r p_ers~n 111 lawful char ge of him/her
the thin g to be done with benefit. In all such
to obt~ m cons ent m time for
seni or colleague in making the decision
case s, it 1s prnd~nt to invo lve anot her the
tion or circ ums tanc es under which
and_ ~ecord111g 111 detail the just ifica
dec1s10n was taken .
icati on
n mad e in goo d faith) No com mun
• IPC Sect ion 93: (Co mm unic atio to the pers on to who m
reas on of any han n
mad e in goo d faith is an offe nse by How ever , the doctor
efit of that pers on.
it is mad e if it is mad e for the ben ion is base d on
re that the com mun icat
wou ld be prud ent eno ugh to ensu pers on it was
d faith for the bene fit of the
veri fiab le facts of the case, in a goo in the
the matter, conv eyed appr opri ately
mad e and in view of the deli cacy of
.
pres ence of spou se/relative/g uard ian
sect ion does not prec lude the
• Cri min al Pro ced ure Cod e Section 174: This for
ased pati ent to pros ecut e the doct or
righ t of aggr ieve d rela tive s of a dece of any
304 A (wh oeve r causes the death
crim inal liabilities und er IPC Sect ion e
t act not amo unti ng to culp able hom icid
pers on by doin g any rash or negl igen on for a term , whic h
of eith er descripti
shal l be pun ishe d with imp riso nme nt
fine, or with both), it prevents doctors from
may exte nd to 2 years, or with
unfortunate death of a patient. It also
bein g arre sted imm edia tely afte r the e
g asse ssed by their peers for any of th
offe rs doctors an oppo1iunity for bein
alleg ed professional lapses. '.).
Doc tors : The Nati onal Commission by its judg men t and
n) Imm unit y of Gov ernm ent treatment
l themselves of the facility of medical
orde r has held that persons who avai in the
sum ers" and the said facility offered
in gov ernm ent hospitals are not "con n." lt has
rded as service ".hired" for "con side ratio
gov ernm ent hospitals cann ot be rega constitute
or indi rect taxes by the public does not
been held that the paym ent of dire ct hospitals. lt
serv ices rend ered in the gov ernm ent
" con side ratio n" paid for hirin g the emp loye e in the Cen tral
mad e by a gov ernm ent
has also been held that cont ribu tion not mak e him a
othe r simi lar sche me does
Gov ernm ent Hea lth Sch eme or such
act.
" con sum er" with in the mea ning of the
n referred as the four th
the curr ent situ atio n, med ia is ofte
• Media trials:demInocra cy. How ever , it has no righ t to pres
ent the facts of a case
pill ar of the of
A doc tor cann ot beco me a vict im
in an unfa ir and prej udic ial man ner. ld
A doc tor shou ld not be silent and shou
mal icio us or defa mat ory repo rting . on
take help of thei r prof essi onal asso ciati
rebu t the alle gati ons. The doc tor can
st a trail by med ia.
to con vey the facts and supp ort to resi
s
: Tak ing the judi cial notice of incident
Pre ven tion of har assm ent of Doc tors stiga tion
• by the poli ce in the guis e of inve
whe re the doc tors are bein g hara ssed uent
med ical evid ence by way of freq
and unn eces sary dela y in the ce~sary
nati on, the cour~ held that unne
adjo urnm ents or by cros s-ex ami _ed.
med ical prof essi onal sho~ld. be avoid 101
hara ssm ent of the mem bers of the y inter rog~ t. ~
ice stati on to unn eces sanl
The y sho uld not be call ed to the pol med tc:n
trial cour ts s?ou ld not _summon
or for the sake of form aliti es. . The even if he/s he is sum mon e ' ade
. ssar y, . . .
erso n unle ss the ev iden ce is nece peo ple m this prof essi on are not m
to see that the
~tte mpt shou ld be mad e

7
 1<1 \\ ;1it nnd waste time unneecss:-i rily, the law courls have l.o respect fi ,r the
peopk in thl' medical profession.
The Supreme Court has warned the pol ice offi cials not Lo. arrest or harass
doctors unless the fac ts clearly come within the parameters laid clown 111 Jacob
M:ithcw's case. Even a threat was given to the police offi cers that if they did
not fo llow these orders they themselves have to face legal action. The
Supreme Com1 went on to say " To prosecute a medical professio nal for
neolinence under criminal \av,; it must be shown that the accused did
"' ::,
somethin g or fai led to do something which in the giv~n facts and
circumstances no medical pro fessional in his ordinary senses and prudence
would have clone or failed to do. The hazard taken by the accused doctor
should be of such a nature that the injury which resulted was most likely
imminen t." The Supreme Court has attempted to remove apprehension that
prevents medical people from discharging their duty to a suffering person.

The practice of medicine is capable of rendering great service to the society provided
due care, sincerity , efficienc y, and skill are observed by doctors. The cordial relationsh
ip
between doctor, patient, Law and Medicine has undergon e drastic changes
due to the
co1pora tization of medical professio n, resulti ng in commerc ialization of the noble
professio n,
much against the letter and the spirit of !he Hippocratic Ohth. Although rapid advancem
ents
in medical science and technolo gy have proved to be efficacio us tools for the doctors
in the
better di.agnosi s and treatmen t of the patients, they have equally become tools
for the
commer cial exploitat ion of the patients. Medical law is undergoi ng a massive change.
The
developm ent of law pertainin g to professio nal m isconduct and negligenc e is
far from
satisfacto ry. T he legislatio ns are not adequate and do not cover the entire field of
medical
negligen ce. Lawsuits for medical negligen ce can be minimize d or avoided by taking
steps to
keep patients satisfied, adhering to policies and procedures, developin g patient-centered
care,
and knowing ways of defendin g against malpractice judgmen ts. Having comprehe
nsive
professio nal liability, insurance is a necessity in the present-day litigious society.