CONTENTS

1. Law & Medical Professions from Past to Present

2. Medical Practice in Light of Law
3. Medical Termination of Pregnancy (MTP) Act
4. Consumer Protection Act (CPA)
5. Criminal Negligence
6. Complaints in the Courts
7. Legal Cases Involving Anaesthesiologists
8. Transsexualism: Medical & Legal Aspects
9. Legal Issues in Gynaecology & Obstetrics
10. Legal Concerns in Orthopaedic Surgery
11. Legal Aspects of the Injured
12. Legal Issues in Neurology and Neurosurgery
13. Complaints against Physicians
14. Complaints against Ophthalmologists
15. Legal Issues in Paediatrics
16. Complaints against other Medical Specialists
17. Documentation & Medical Informatics
18. Research and Law
Chapter: 1. Law & Medical Professions from Past
to Present

Medical practice in India is believed to have started from the time of the sages.
Since that time patients were treated by Ayurvedic method, for this no fee was
taken from the patient.At that time, Vaidya was considered equal to God.From
time to time VAIDHYA were working for this,Even till that time money had no
place in the relationship between patient and VAIDHYA.Slowly the practice of
Allopathy started during the British period, and money started in the doctor-
patient relationship.

After this India became independent and health facilities were provided by the
government but this structure was very weak against the population of the
country of India. Then gradually doctors started doing private practice. He was
considered and respected a lot in the society.

It was an era of immense faith of the patients and their attendants for the
treating doctors and unquestioned acceptance of the medical treatment
rendered. Within the next decade, the middle class and economically better
society moved for medical towards private sector hospitals, due to the inability
of the government sector to cater satisfactorily to the needs of the burgeoning
population of the poor and sick patients from far away destinations.

With passing time, the cost of private treatment rose out of proportion, from
its affordability by the masses; the discontentment from medical care
prompted many patients to seek legal avenues for redressal of their
complaints against health sector personnel or institutions despite high costs
and long-time taken for the court proceedings to conclude.In 1986, health
sector was brought under the ambit of Consumer Protection Act for regulation
of health care services provided in exchange of a fee.

As the time passed, better techniques, drugs and protocols for medical treatment
were adapted by the doctors. Better documentation of patient's records,
measurement of the standards and quality indicators for patient outcomes after
anaesthesia and surgery succeeded in improving the anaesthetic and operative
outcomes in most of the hospitals.
Joint preoperative meetings of the surgeons, anaesthesiologists cardiologists,
physicians and hospital administrators with the patients and their families to
discuss possible postoperative adverse outcomes of complicated surgical or
medical treatments, has become a norm today. before accepting the high risk
patients for major operations, especially in the private sector hospitals due to
rising financial implications for the patients as well as the rising rate of
litigations against doctors and hospitals.

With safety checklists in place for managing adverse events along with
meticulous documentation and uniformity in the standard of care anaesthesia-
related responsibilities satisfactory anaesthesia outcomes could be achieved in
most of the patients.

However, the present scenario of litigations necessitates that all the doctors
must safeguard themselves by taking following steps:

a) Update their knowledge and skills regularly.

b) Adapt safe medical practices during their clinical practices.
c) Keep essential checklists, drug dosages and preset protocols handy with
them.
d) Assess their patients thoroughly themselves and ask for guidance from
seniors and other medical specialists wherever necessitated and docu- ment
well.
e) Meticulously document the pre-operative condition of each patient and
provide good intraoperative and postoperative care to all the patients.
f) Maintain continuity of care for their patients during the post-operative period.
g) Refrain from providing casual telephonic or verbal advice to ward doc- tors
regarding administration of sedatives or analgesics, without as- sessing the
patients.
h) Prescribe and explain the medical treatment and safety precautions to be
undertaken by the patients on their discharge from the hospital.
PUNITIVE MEASURES AGAINST DOCTORS

Gone are the days when the doctors were the most respected people in the
society. The changes in the professional ambience were brought by the takeover
of the health care by the corporates in private sector. The doctors were paid
better than before but the cost of medical treatments sky rocketed and decreased
the affordability of majority of the middle class people for private treatment
despite health insurances.

A change in the thinking of the society occurred with time. Expectations from
doctors for better health care and guarantied recovery increased. Many patients
began to accuse and sue doctors alleging medical negligence after adverse
outcomes of treatments that raised their hospital bills.

The process of litigation is prolonged and taxing for the doctors who are
accused. It has the potential to affect not only their finances but also their
health, sanity and confidence during court trials and announcement of
punishment for medical negligence.

Punitive measures initiated against professionals, accused of providing deficient

patient care are not only humiliating but also expensive. Suspensions from
work, cancellation of their medical licence to practice, burden of litigations and
legal fees along with grant of heavy financial compensations to the patients or
their families are amongst some of the examples of loss of income for the health
givers.

Learning the lessons from the doctors who suffered during the litigations, it is
advisable for the professionals to play a proactive role to nip the problems of
patients' dissatisfaction in the bud by adapting multiple safety measures during
their clinical practices.
SAFE MEDICAL PRACTICES FOR DOCTORS
Doctors must follow Safe Medical Practices that include:
a) Regular updation of their knowledge and skills.
b) Meticulous patient assessments, treatments & medical documentations.
c) Optimization of the Preoperative patients for their pre-existing ailments, such
as diabetes, hypertension, hyperthyroidism, etc.
d) Adaptation of safe and recognized surgical and anaesthetic techniques.
e) Regular usage of safety checklists for identification of the right pa- tients for
the right surgeries and management of perioperative adverse events.
f) Ensuring undivided vigilance to the anaesthetized patients.
g) Provision of continuity of care.
h) Refrain from providing casual telephonic or verbal advice to the ward nurses
regarding administration of sedatives or analgesics, without as- sessing the
patients.
i) Continuing to update professional knowledge and skills.
 Chapter: 2. Medical Practice in Light of Law

There was a time when doctors were requested to assist the legal process.
Medical opinion was sought in several criminal cases that involved physical
assault and even death. Doctors appeared in the courts as "persons in white
coat". While this role is still performed by the doctors, they are also now being
dragged to the court with allegations of criminal neglect, cheating and even
homicide. As a consequence, doctors now nurture a fear of the law lest they be
convicted for something that may unintentionally go wrong during the
treatment of a patient.

Is the law anti-doctor? Is such a fear justified?

Doctors deal with crisis situations and are generally held in high esteem. They
remain to be the most respected of all the professionals. They are seen as
saviours, healers, persons with compassion and dedicated to their noble
profession. However, there are situations in which the patients or their
relatives see the doctors and the hospital in a different light. Rightly or
wrongly, when their positive stereotypical image of the doctor, or of the
hospital, is shattered they take the legal recourse. With the spread of literacy
and growth of general awareness about health related matters among the
masses, there has been an increase in the number of cases taken to the court.
This change came long back in the advanced countries of the West; and it is
now gaining ground in developing countries like India as well. It is the rise of
such incidents that has induced fear among the doctors.

The fear of law has begun to affect their professional lives. To protect
themselves from any possible legal complications, they have become more
cautious. Rather than immediately proceeding to prescription, they resort to
prolongation of the process of diagnosis by involving people of different
specialties, and advising a series of tests which raises the cost of treatment of
the patient and results in Patient/Attendant Dissatisfaction.
Rising Hospital Bills due to Patient Deterioration
In medical cases, the condition of the patient is unpredictable and may
deteriorate due to complications of the patient's illness, despite the best
efforts of the treating doctors. This is the stage of hospitalization when the
costs of emergency medical or surgical treatments and admission to an
intensive care unit (ICU) cause the patient's hospital bills to soar unexpectedly
high raising the dissatisfaction score of the relatives.
Hoards of relatives seek repeated information about their patient's well being
and solutions from the attending doctors but the responses of the busy and
fatigued doctors who are posted on prolonged duties due to persistent
manpower shortage, fail to cater to and satisfy relatives of all patients despite
their best efforts. This dissatisfaction along with heavy cost of treatment is the
backbone of the Medicolegal Complaints.

Medicolegal Duties of the Doctor

The interface between law and the doctor is not just limited to the medical
complaints and unexpected deaths only. Law, social medicine and medical
jurisprudence occupy an important place in the medical curriculum during the
preliminary years of medical graduation to prepare students of medicine to
recognize their medicolegal responsibilities along with medical therapies

The Legal Responsibilities of the Medical Doctors constitute.

1. Identification of the medico legal cases.

2. Meticulous recording of the history of patients.
3. Attestation of the statements made by the patients to the investigating
authorities [Police].
4. Assisting the police during recording of a dying declaration.
5. Determination of age of a minor in cases of rape or matters of consent.
6. Representation in the capacity of medical witness in the courts for cases of
accidents or unnatural deaths, attempted suicide or homicide with comments
about the type of injuries and danger to the patient's life.
7. Ascertaining the cause of death after post mortem (autopsy).
8. Serving as a medical expert for testifying during complaints against doctors.

Essential Medicolegal Self-protection Skills for Doctors

In the era of deteriorating doctor-patient relationships, doctors need to

acquire six additional skills besides clinical skills, for self-protection and
defense from medico legal litigations. These skills are:

 Knowledge about the legal acts

 Communication
 Documentation
 Communication of documentation
 Documentation of communication
 Preservation of documentation

Knowledge About the Legal Acts

The medical profession and hospitals are bound not only by their duties and
guidelines but also by various legal acts such as:

1. Anatomy Act
2. Artificial Insemination and Test Tube Baby Related Act/Problems
3. Bio-Medical Waste (Management & Handling) Rules, 1998
4. Blood Bank & Eye Bank Related Act/Problems
5. Consumer Protection Act (CPA), 1986
6. Contempt of Court Act
7. Criminal Procedure Code (CPC), 1973
8. Drugs and Cosmetics Act, 1940
9. Drugs (Control) Act, 1950
10. Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954
11. Dying Declaration and Deposition
12. Employers Liability Act, 1948
13. EPF and Miscellaneous Provisions Acts, 1952
14. Epidemic Disease Act, 1897
15. ESI Act, 1948
16. Equal Remuneration Act, 1976
17. Fatal Accidents Act, 1855
18. Guidelines for Sterilizations
19. Indian Contract Act
20. Indian Evidence Act, 1872
21. Indian Majority Act, 1875
22. Indian Medical Council (IMC) Act, 1956 and its subsequent amendments
and ordinance - IMC (Amendment) Ordinance, 2013
23. Indian Medical Degree Act, 1956
24. Indian Penal Code (IPC), 1860
25. Insurance Acts and Various Related Policies
26. Human Organ Transplantation Act, 1994 along with Rules, 1968
27. Labour Laws, Industrial Disputes Act, 1947
28. Law of Torts
29. Maternity Benefit Act, 1961 along with rules 1963
30. Mental Health Act, 1987
31. Minimum Wages Act, 1948
32. MTP Act
33. National and International Code of Medical Ethics (see Annexures)
34. PNDT (Regulation and Prevention of Misuse) Act, 1994
35. Poisons Act, 1919
36. Pollution Relation Act
37. Prenatal Diagnostic Techniques Act
38. Prevention of Commercial Dealing in Human Organs
39. Private Medical Establishment (Regulation) Act
40. Protection of Human Right Act, 1993
41. Registration of Birth and Death Act, 1969 and the Births, Deaths and
Marriages Registration Act, 1816
42. Right of Information Act
43. Work Men Compensation Act, 1923

RELEVANT SECTIONS OF INDIAN LAW

The following sections of Law and Acts are generally referred to during medical
practice or service, and are described in brief below.

Indian Penal Code (IPC), 1860

A review of IPC shows that law can prove to be a saviour, if the doctor has
treated the patient well. Some of the relevant provisions are determined by
various sections as mentioned below:
Section 51: 'Oath'-"It is a solemn affirmation substituted by law as oath".

Section 52: 'Good faith "Nothing is said to be done or believed in "good faith"
which is done or believed without due care and attention".

Section 80: "Accident while doing a lawful act" "Nothing is an offense which is
done by accident or misfortune and without any criminal intention or
knowledge in the doing of a lawful act, in a lawful manner, by lawful means,
and with proper care and caution”

Section 81: "Act likely to cause harm, but done without criminal intent, and to
prevent other harm."

The law states that "For fixing a criminal liability on a doctor, the standard of
negligence required to be proved should be as high as can be described as
'gross negligence' or 'recklessness'. It is not merely lack of necessary care,
attention and skill."

Note : Sections 88-93 are in favor of doctors and are invoked by the lawyers
defending them.

Section 88 states that "the doctor has treated a patient with good intention."
"Nothing which is not intended to cause death, is an offense by reason of any
harm which it may cause, or be intended by the doer to cause, or be known by
the doer to cause or be known by the doer to be likely to cause, to any person
for whose benefit it is done in good faith, and who has given a consent,
whether express or implied, to suffer that harm, or to take the risk of that
harm."
 Sections 89, 90, 91 state that "the doctor has treated a patient with due care
and proper consent."

Section 92: "Act done in good faith for benefit of patient without consent."

Section 93: "Communication made in good faith."

Section 159: "When two or more persons by fighting in a public place. Disturb
the public peace, they are said to 'commit an affray' (If they are charged, they
will have to go to court)."
"Affray is fighting together of two or more persons in a public place to the
terror of the persons lawfully there."
Section 160: "Punishment for committing affray an imprisonmen of either
discription for a term which may extent to one month, with fine which may
extend to one hundred rupees or with both”

Section 162: "Taking a gratification in order, by corrupt or illega means to

influence a public servant, 3 years or fine or both

Section 174: "Non-attendance in obedience to an order from publie servant",

e.g., summons, notice.

Section 191: "Giving false evidence."

Section 192: "Fabricating false evidence."

Section 193: "Punishment for false evidence."

Section 197: "Issuing or signing false medical certificate."

Section 299: "Culpable homicide."
"Whoever causes death by doing an act with an intention of causing death or
with an intention of causing such bodily injury as is likely to cause death, or
with the knowledge that he is likely by such an act to cause death, commits the
offence of culpable homicide."

Complaints of Criminal Negligence with the Police under IPC Section 304
Criminal offences against anyone in the country have to be proven 'beyond all
reasonable doubt', while torts are decided merely 'on the balance of
probabilities. The proceedings of the court are tougher in criminal cases and
require the personal presence of the doctor during each hearing. while in civil
cases and under CPA, the doctor can be represented by a lawyer alone.

All the cases of suspicious deaths, suicide, murder, unexplained trauma,

fabrication of medical records, etc., fall in the category of criminal negligence
and need an intervention of the local police. The charges can be extended to
the owner of the hospital, administrator as well beside the doctor whoever has
the knowledge of this fabrication.
Section 304 directs "Punishment for culpable homicide not amounting to
murder: Punishable with imprisonment for life or imprisonment of either
description for a term which may extend to 10 years and shall also be liable to
fine, if the act by which death is caused is done with the intention of causing
death, or of causing such bodily injury as is likely to cause death”.

The Supreme Court (SC) in a historic ruling in August 2004 in the case of
Dr.Suresh Gupta v. Govt of NCT of Delhi opined,

"For every mishap or death during medical treatment, the medical man cannot
be proceeded against for punishment. Criminal prosecution of doctors without
adequate medical opinion pointing to their guilt would be doing great
disservice to the community at large because if the courts were to impose
criminal liability on hospitals and doctors for everything that goes wrong, the
doctors would be more worried about their own safety than giving best
treatment to all their patients. This would lead to shaking the mutual
confidence between the doctor and the patient. Every mishap or fortune in the
hospital or clinic is not a gross act of negligence to try the doctor for offence of
culpable negligence."

Booking against the doctors under this section, SC directed that, "doctors
should be booked under civil cases for compensation only and not for criminal
action."

Section 304A: "Causing death by negligence."

"Whoever commits culpable homicide not amounting to murder shall be
punished with imprisonment of either description for a term which may extend
to 2 years, or with fine or both."
The complaints against medical practitioners for alleged criminal negligence
are registered under this provision.

Section 336: "Deals with a rash or negligent act so as to endanger human life
or personal safety of others."

Section 337: "Causing grievous hurt by act endangering life or personal safety
of others is punishable with imprisonment of either description for term which
may extend to 2 years or with fine which may extend to 1000 rupees or with
both.”

Section 338: "Causing hurt by endangering life or personal liber of others by

acting rashly or negligently so as to endanger humo life or the personal liberty
of others shall be punished with imprisonment of either description for team
which may extend to waws or with fine which may extend to 1000 rupees or
with both”
Section 342 protects against punishment for wrong confinement.

Article 21 protects life and personal liberty.

"Right to Life means the right to lead meaningful, complete and dignified life.
Article 21 requires that no one shall be deprived of he life or personal liberty
except by procedure established by law and this procedure must be reasonable,
fair and just and not arbitrary, whimsical or fanciful."

On the basis of earlier pronouncements, the Apex Court provided the list of
some of the rights covered under Article 21. They are:

 Right to go abroad
 Right to privacy
 Right against solitary confinement
 Right against hand cuffing
 Right to shelter
 Right against custodial death
 Doctor's assistance

Should Article 21 also include a "Right to Die"?

This question was largely discussed in Supreme Court (SC) during a case, "Gyan
Kaur v. State of Punjab". The SC in its ruling on 21 March, 1996 made it clear
that, Right to live is a positive aspect of life in a society. Article 21 can bring in a
right of not living a forced life. But "Right to Die" refers to extinction of a
positive aspect. This right is not akin to other rights like freedom of speech and
freedom of not to speak, freedom to associate and freedom of not to
associate, freedom of doing business and freedom of not to do business, etc.
Thus, "Right to Die" is similar to commitment of suicide and does not have a
legal sanction.
Section 24 of the Indian Medical Council Act [IMC Act]
The IMC Act came into force in 1956 and conferred powers to the Medical
Council of India to discipline and punish the erring members of the medical
profession. There was no provision for the award of damages to the
complainant before Section 24 empowered the Medical Council to remove the
name of any person enrolled on a State Medical Register on the grounds of
professional misconduct.

The Medical Councils are expected to self-regulate the medical profession by

monitoring their professional skills and conduct, in addition to providing
continuous education.

Criminal Procedure Code (CPC), 1973

The sections under CPC relevant for medical profession are listed below:

Section 53: "Examination of accused by doctor at the request of police officer."

When a person is arrested on charge of committing an offence and there is a
belief that the examination of the person may exhibit evidence to commission
of an offence, then a Registered Medical Practitioner (RMP), acting at the
request of a police officer of the rank of sub-inspector examines the accused.
Whenever, a female is to be examined under this section, the examination is
required to be made only by, or under the supervision of, a female registered
medical practitioner.

Section 54: "Examination of arrested person by doctor at the request of the

arrested person."
This is done when the accused alleges before a magistrate that the
examination of his body will afford an evidence to disprove the commission of
a crime by him and the magistrate is convinced that the request is not made to
delay justice.
Section 66: "Serving summons to a government servant."

A person in active government service is issued summons by the court in

duplicate through his/her head office. And the head, then causes the summons
to be served to the concerned person. (This is applicable in the case of doctors
employed in Government-run Hospitals.)

Section 154: "Information to police officer in cognizable (clearly identifiable)

cases,"
If any information is given verbally to an officer in-charge of the police station,
and is reduced to writing by him or under his direction and is read over to the
informant (i.e., the doctor) and thereafter is signed by the person giving it,
such information is treated as evidence.
A copy of the information as recorded has to be given to the informant free of
cost. If the officer in-charge of the police station refuses to record the
information, then the substance of information should be sent in writing by
post to the superintendent of police concerned with investigation of the case.

Section 155: "Information to police officer in non-cognizable cases and

investigation of such cases."
Information is given to the officer in-charge of the police station as in previous
section who refers the informant to the magistrate. No police officer is allowed
to investigate a non-cognizable case without the order of a magistrate.

Section 175: "Power to summon persons."

A police officer may summon in writing two or more persons for the purpose of
investigation and those persons are bound to attend and answer truly all
questions other than questions the answers to which have a tendency to
expose him to a criminal charge or to forfeiture.
Section 205: "Magistrate may dispense with personal attendance of accused."

If the magistrate sees a reason to do so and permits the doctor to be

represented by his pleader till he requires his personal attendance.

Section 291: "Deposition of medical witness."

The deposition of a civil surgeon or other medical witness, taken and attested
by a magistrate in the presence of the accused, may be given in evidence in
any injury or other proceeding under this section of law.

Section 293: "Reports of certain government scientific experts."

Such reports may be provided in person, or a responsible officer, who is
conversant with the facts of the case, may be deputed to satisfactorily depose
in court on his behalf.

This section applies to:

a) Any Chemical Examiner/Assistant Chemical Examiner to Government

b) The Chief Inspector of Explosives
c) Director of Finger Print Bureau
d) Director, Haffkine Institute, Bombay
e) Director/Deputy Director/Assistant Director of a Central/State Forensic
Science Laboratory
f)The Serologist to the Government

In criminal law, 'mens rea' or a guilty mind is essential for a conviction. The
criminality lies in running the risk with recklessness and indifference to the
consequences. If convicted, the punishment is usually imprisonment. Section
357 of the Code of Criminal procedure 1973 also empowers the criminal
courts to award compensation to the victims while passing judgment of
conviction.

Indian Evidence Act (1872)

Section 45: "Opinion of experts."

When the court has to form an opinion upon a point of foreign law, or of
science or art, or as identity of handwriting (or finger impressions), the
opinions upon that point of persons (experts), who are specially skilled in such
issues are relevant facts.

Section 61: "Proof of contents of documents."

It means that the contents of documents may be proved either by primary or
by secondary evidence.

Section 62: "Primary evidence."

It means that the document itself is produced in court.

Section 63: "Secondary evidence."

It consists of certified copies made from original, under the provisions of law.

Section 159: "Refreshing memory."

A witness may, while under examination, refresh his/her memory by referring
to any writing made by himself/herself at the time of transaction concerning
which he is questioned.

Section 160: "Testimony to facts stated in document."

A witness may also testify to facts mentioned in any such document as
mentioned in Section 159, although he may not have specific recollection of
the facts themselves, if he is sure that the facts were correctly recorded in the
document.

Section 162: "Production of documents."

A witness summoned to produce a document is expected to bring it court, if it
is in his possession or power, notwithstanding any objection which there may
be to its production or its admissibility.
The doctor may decline to take up the responsibility of treating a particular
patient in some circumstances. They are:

1. If the doctor himself/herself is not well or free to attend.

2. If the doctor already has strained relations with the patient.
3. If the call is outside the earmarked hours of professional work.
4. No legal obligation to answer a call or visit the patient at latter's place of
residence especially if the doctor does only office practice.
5. Night call may be refused on the ground of incidents of robbery. 6. If written
consent to a particular procedure or treatment is refused.
7. If the patient and the relatives are uncooperative.
8. If another practitioner is consulted without his knowledge.

The Supreme Court in a historic ruling in August 2004, against booking doctors
under this section, directed that "Doctors should be booked under civil cases
for compensation only and not for criminal action"

Court Directives in Patients requiring Emergency Treatment

Hakeim Seikh requested compensation and Supreme Court [SC] gave
directions in a petition when various state run hospitals in Calcutta failed to
give him an emergency treatment on the ground of non-availability of bed,
after he sustained head injuries in a railway accident. He was then treated in a
private hospital.
The SC held:

"Failure to treat Hakeim in Government hospitals had resulted violation of his

right to get adequate and timely emergency treatmen under Article 21, which
imposes an obligation on the state to safe guard the right of life to every
person. Adequate compensation.co be awarded by the SC under Article 32 and
the high courts under Article 226 of the Constitution."

The court awarded compensation of Rs 25,000/- to the injured person.

 Chapter: 3. Medical Termination of Pregnancy
(MTP) Act

LAWS RELATED SPECIFICALLY TO THE HOSPITALS

Acts that are usually referred to in the event of medical complaints against the
specialists are listed in the following section.

MTP ACTS AND MTP AMENDMENT BILLS

1. Medical Termination of Pregnancy (MTP) Act 1971
This Act provides for the termination of pregnancy on medical, social,
humanitarian and eugenic grounds, up to 20 weeks of gestation, in a safe
environment by a recognized, registered and adequately qualified medical
practitioner.

The Act specifies the following considerations for terminating a pregnancy:

1. Health of mother (such as: Physical or mental health hazard to woman)
2. Eugenic causes (such as: Substantial risk of child born with deformity or
disease)
3. Humanitarian causes (such as: Rape resulting in conception)
4. Personal causes
5. To control illegal criminal abortions
6. As a family planning measure (such as Failure of contraceptive)
Under this Act, MTP is permitted to be performed only in places approved by
the Government. The Government 'B' form is needed to be displayed at such
approved centres. These centres are required to have a safe and hygienic
environment-operation table, surgical instruments, anaesthesia and
resuscitation equipment, drugs and infusions.