Medicolegal Issues in Clinical Practice

Dr. Daljit Singh Professor Neurosurgery
GB Pant Hospital, Maulana Azad Medical College( MAMC) N. Delhi

Expert Member- Neurosciences MemberDELHI MEDICAL COUNCIL

DOCTORS are no longer considered as Second GOD Business attitude of medical professionals Justifications to Malpractices angle.. Lack of proper communications   

Doctors at Crossroad
ETHICS / SERVICE

COMPETENCE & KNOWLEDGE

CONSUMERS & LEGALITY

EARNINGS & FAMILY 

Entire relationship between Doctor and patients have changed . 

Patient is consumer and a potential litigant until otherwise ..

Knowledge about law 

Misadventures in Medical Practice is inevitable .. 

We should have some common knowledge about provisions in our law as a self defense in such difficult situations

Guidelines for Decisions 


Medical Legal

ACTS 
          

CPA 1986 IPC 1860- 202,267, 269 270 AIDS, 304A,319,322,340 1860304A,319,322,340 IEA 1872 The Drug Controller Act 1950 The Drugs and Magic remedies Act 1954 MTP Acts The Pharmacy Act MCI Act NDPS 1985 PNDT 1996 RTI ETC 

      

CPA Negligence Important Judgments Role of Records Check List In case of Problem Important Cases..

Important Judgements
Indian Medical Association v. V P Shantha 1995(3)CPR 412 SC Dr Suresh Gupta v. Govt of NCT , 2004 AIR ,
SCW 4442:2004(6) SCC 422:2004(6) scale 432

Jacob Mathew Dr .V.State of Punjab &ANR 5.8.2005 .V.State Hon,ble Mr Justice RC Lhoti,CJI,G P Mathur,P K Balasubramanyam Lhoti,CJI,G JJ III(2005)CPJ(CS) Martin F D,Souza v. Md. Ishfaq
Hon,ble Mr Justice Markandey Katju and G. S .Singhvi Feb 2009 .Singhvi

Indian Medical Association v. V P Shantha 1995(3)CPR 412 SC 

Hon,ble Justice Kuldeep Singh, Mr Justie S C Agarwal, Mr Justice B L Hansaria

13.11.1995 Three judge bench 

Medical profession was brought in ambit of CPA 

Exception to CPA is totally free services to poor and rich Charitable ,except meager registration amount .

Govt or Private , 

Hospitals where both paid and unpaid services are covered, availed free services.

even if complainant has

Consumer Protection Act 1986 

1995 SC Patients - consumers Disease - demand /article / goods Doctors service providers -Contract 

 

COMPLAINANT in CPA 
  

Patient Relatives Friends Voluntary associations

Consumer protection Redressal Agencies .. 

District forum (9 District in Delhi) 

2yrs period for filing a case   

State Commission -15 days condonable for sufficient ground,20 Lakhs National Commission -30days from the date of order,20L- 1 crore order,20LSupreme Court -30 days-more than 1 dayscrore

Negligence   

Medical negligence resulting from failure on the part of doctor to act in accordance with medical standards in practice, Which are being practiced by an ordinary competent man practicing in same profession Reasonable degree of skill and care

Negligence 

CIVIL 

CPA--CPA---

Compensations 

CRIMINAL 

CPC 304A

Imprisonments

Negligence  

 

Winfield negligence as tort encompasses of 1 Existence of Legal duty 2.Breach of legal duty 3.Damages caused Bolam s test 

Breach of Legal Duty 

Does some thing which an ordinary prudent man would not have done . 

Fails to do some thing which ordinary prudent man would do .

Proof of NEGLIGENCE 


Onus lies on the patient Shifting onus.. 

Expert evidence is to be brought in support of allegation
Nagarmal Modi Sewa v. Anita Devi 2002(3)CPR 163 

Negligence 

Madras High Court
Huck v Cole 1968(118) Huck v. Cole New Law Journal Philips India Ltd.v.Kunju Punn AIR 1975 Bom.306 Medicine is an Inexact science and it is unlikely that a reasonable Doctor would intend to give an assurance to achieve a particular result .

Dr CJ Subramnia v.Kumarswamy I .1994 CPJ 509 CCL 475 

  

NO NEGLIGENCE 
    

ERROR OF JUDGEMENT ACCIDENTS, THERAPEUTIC MISADVENTURES ERROR IN DIAGNOSIS UNAVOIDABLE COMPLICATIONS INFECTIONS COMPLICATIONS OF DRUGS 

DUTY TO DIAGNOSIS, ADVICE, TREATMENT

Contributory negligence 

Patient has not followed the instructions Took treatment/ measures elsewhere which may have affected outcome Tear the records  

Two Schools of Thoughts.. 

The court could not do greater disservice to the community or advancement of medical services than to place hallmark of legality in one form of treatment
Dr N T Subramanyam v. B Krishna Rao 1996 CP 3233(NC)  

Second option of treatment is to be given to patient

Arrest of doctors 304A IPC 
 

304A IPC CULPABLE HOMICIDE NOT AMOUNTING TO MURDER .. Dr Suresh Gupta v. Govt of NCT , 2004 AIR , SCW 4442:2004(6) 
   

SCC 422:2004(6) scale 432 1.When a patient agrees to a treatment or surgical option, every careless act can not be termed as criminal. It can be termed as criminal only if medical man exhibited a gross lack of competence or inaction . 2. Where death of patient results merely from an error of judgement or accident, no criminal liability should be attached to it 3. Mere inadvertence or some degree of want of adequate care and caution might create civil liability 4. For every mishaps or death during medical treatment the medical man can not be proceeded against punishment

Dr Suresh Gupta v. Govt of NCT , 2004 AIR SCW 4442:2004(6)   

5.Criminal prosecutions of doctors without adequate medical opinion pointing to their guilt would be doing a great injustice to the community at large .. 6. For conviction of doctors for alleged criminal offence, the standard should be proof of recklessness and deliberate wrong doing i.e. higher degree of morally blameworthy conduct. 7. The act of negligence or rashness must be of high degree so as to indicate mental state which can be described as totally apathetic toward the patient ..

SLP 
 

Jacob Mathew Dr .V.State of Punjab &ANR 5.8.2005 .V.State Hon,ble Mr Justice RC Lhoti,CJI,G P Mathur,P K Balasubramanyam Lhoti,CJI,G JJ III(2005)CPJ(CS) NON AVAILABILTY OF Oxygen cylinder in room Negligence in contest of medical profession necessarily calls for treatment with difference Simple lack of care No proof of negligence Error of judgment Accidents Failure to use special or extraordinary precautions are which might have prevented a particular happening can not be the standard for judging alleged negligence  

  

SLP
Jacob Mathew Dr .V.State of Punjab &ANR 5.8.2005 Hon,ble Mr Justice RC Lhoti,CJI,G P Mathur,P K Balasubramanyam JJ Lhoti,CJI,G III(2005)CPJ(CS 

Doctrine of Res Ipsa Liquitor..is only an evidence in civil court Liquitor..is and does not prove to make a case of criminal rashness or negligence For non availability of O2 cylinder hospital may be liable for a civil suit only and not 304A IPC Even in civil jurisdiction the rule of res ipsa loquitor is not of universal application and has to be applied with extreme care  

SLP
Jacob Mathew Dr .V.State of Punjab &ANR 5.8.2005 Hon,ble Mr Justice RC Lhoti,CJI,G P Mathur,P K Balasubramanyam JJ Lhoti,CJI,G III(2005)CPJ(CS  Professional negligence vs. Occupational negligence  Deviations from normal practice is not necessary evidence of negligence ..  Std are to be compared at the time of treatment and not at the time of trial  Between devil and deep sea situations choose the lesser evil depending upon facts and circumstances..  Higher the acuteness in emergency and higher the complications, more are the chances of error of judgment

SLP 
 

Jacob Mathew Dr .V.State of Punjab &ANR 5.8.2005

Hon,ble Mr Justice RC Lhoti,CJI,G P Mathur,P K Balasubramanyam JJ III(2005)CPJ(CS Lhoti,CJI,G  

  

Negligence if a person did not possess a skill and professed Or he did not exercise with reasonable competence Std would remain that of an ordinary competent person exercising ordinary skill ( Bolams test) Charge of not using a particular equipment would fail if equipment was generally not available at particular time of incident.. In negligence mens rea must be shown to exist Word gross was to be read in deciding negligence against doctor for 304A Private complaints should not be entertained unless supported by other competent doctors IO before taking an action for 304 A should obtain independent and competent medical opinion

SLP 

Doctor accused of rashness should not be arrested in routine manner simply as charges have been leveled against him .Unless the arrest IO feel Doctor will not be available to face the prosecution

Martin F D,Souza v. Md. Ishfaq Hon,ble Mr Justice Markandey Katju and G. S .Singhvi Feb 2009 .Singhvi 

Before Issuing notice to the Doctor/Hospital-matter should be first Doctor/Hospitalreferred to competent Doctor or committee related to the field of complaint Police not to harass unless under the purview of Jacob Mathew case..otherwise face the legal action. Simple negligence and gross negligence may be a matter of disputes even among experts Doctors can also make error of Judgments however indiscriminate proceedings against doctors are counter productive Law is a watch Dog and not bloodhounds..    

Frivolous complaints 

Frivolous complaints -Imposition of cost 

Chronic litigant Imposition of cost +10000/ penalty

Role of Records«. Records«.   

 

Treatment records are to be made available if demanded Summary of Records for opinions from other medical or otherwise . MCI regulations 2002 ----Keep for at least 3 yrs.. ----Keep Fabrication and manipulation .. UPDATE RECORDS AS SOON AS POSSIBLE..
Dr Shyam Kumar v. Rameshbhai, Harman bhai Kachhiya 2002(1CPR 320 Heranbalal Das v. Dr Ajay Paul 2001(2) CPR 498

Findings on Record« Record« 
  



Put Daily notes to support duty of care Serious patients should have notes at least twice a day Do not ignore pulse , RR, Pupils, BP, Sugar, ECG, X ray chest .. Court does not understand GCS etc.. Give information about the condition of patient time to time and mention on case record get signatures time to time ..

Checklist 
   

 

Inform Consent in writing -TWO SIGNATURE Modify according to legal demands Ordinary and reasonable skill vs. Special care Details record maintain , update , preserve 3 yrs. Furnish on demand in 72 hrs. yrs. hrs. Necessary lab tests Specialist is required in case diagnosis not precise Drugs side effects are to be known INFORM

Checklist 
   

TT in case of Trauma Do not go beyond your skill In case treatment is new, take inform consent with knowledge Give proper post op or discharge instructions write clear, legible and comprehensive medical notes. notes. Do not entirely delegate duty to juniors, keep constant supervision..

Check list  

Keep tags of implantable devices in record . Do not give antibiotics without C/S particularly in infection --- long standing

Check list  

 



Keep yourself informed latest developments Patient is priority over MLC 24 Hrs clinic should have competent Doctors round the clock Never overstate your qualifications Issue genuine Medical Certificates.. Certificates.. 


Jessical lal DDA

Check list 
    

Always attend the patient when called Enquire previous drug allergy.. Preserve Radiology deficiency in service
VP Shanta v. Cosmopolitan hospital 1997 CPR 377

ICU , CCU patient need special care Take Indemnity Insurances

BIG MOUTH SYNDROME 
  

Do not criticize your colleagues . Responsibility to your profession. Protect the interest of Juniors Talk about your complications as frequently as your success Report in Journals. .. to save others .

Duty of Doctors 

Duty of Care of 

Diligence, Knowledge, care and Caution 

  

Records Notifiable diseases AIDS Consent and alternative treatment Records to be given to patient/ family

In case of problems 
    

BE CALM Sympathies with patients Explain the realities Do not conceal and try to improve upon .. Take Second medical opinion.. Document Avoid confrontations..   

Take legal experts opinion Try to settle the case .. LACK OF COMMUNICATIONS IS MOST OFTEN CAUSE OF COMPLAINTS

Conclusions   

Patient is priority for all of us as we conduct a noble profession Do what is best for the patient and not what is best for you .? Ensure that your decisions and actions are scientific, humane, effective and in the best interests of the patient and his family. Record them. Once this is done, you need not fear any individual, administrator or tribunal."

CASES 


SC homepath abrtion death Nihal Kaur v Director PGIMS 1996CPJ 112 1.2 L

1L scissors abd 

Gursevak Singh vs Dr Jaskaran Singh CPJ 300 1996, III Amputaion following injection 1.25 L Anuradha ben D Kothari v. Navdeep Clinic III 1996 CPJ 605 Cardiac arrest during surgery 1L 

CASES 
  

  

SPINE Nuruddin Katubuddin Balativ Dr LN Vora 1995 (2)CPR 424 Surgery on Myelogram L 4/5 , Failed back , MRI revealed no evidence of proper surgery as disc was still seen DISMISSED as only protruding disc was removed. AkhilBhartiya Grahak Panchayat vDr Jog Hospital III 1993 CPJ 1447 Worsened following surgery DISMISSED BURN ON OT TABLE Master PN Ashwin v. Manipal hospital . Compensation 5 LAKHS DM with Cataract CMC v. A Shahajahan 2000, CCJ 554 25000/ EMERGENCY SURGERY Dr T T Thomas v. Elisa AIR1987 ker52 Acute appendicitis not operated as no consent Died- Doc Liable Died- 

     

CASES 
 

EPILEPSY Murlidhar Eknath Masane v.Sushurusha Citizen Co op Hosptal 1995(1)CPR 606 13yr, on Luminol, Zeptal, Eptoin. Given Largectil/ R/T feed/ Bed sore in 2 days / Died Expert opinion against- 3 L hostpital, 50K againstDoc. FIRST AID TO PATIENT Pt. Parmanad Katara v. Union of India AIR 1989 SC2039 PIL Medical man should not be harassed for the purpose of Interrogation Patient first priority Court -should not let them wait . Dates 

   



CASES 


NO BED SITUATION Ranjit Km Das v. ESI Hospital 2 Lakh
ICU Bed Sir Ganga Ram Hospital v. D P Bhandari 1993 CCJ 261: II 1992 CPJ 397 (NC) Patient could have been shifted to other hospital Bed not available in ICU. State commission fined Rs 1 Lakh National Commission Dismissed Mere Omission on part of hospital that relations may if so desire shift the patient to other hospital . 

 

  

CASES 
         

Minor Injury CDR Hospital v. Nirmala Manaseh 2001(2)CPR 69 Ampoule blisters in cheek- 30k cheekPARAPLEGIA following Spinal Anaesthesia S RAMARAO V. Bantwal Sulochana Madhava Shenoy Trust 1997 CPJ 301 Hernia surgery Advised not to move without assistance Dismissed as no fault of Surgeon INJECTION PARALYSIS Dr G D Jiladia v. Dharmishta Chhtubhai Goswami 2003 (2) CPR 490 Sciatic NERVE Injury 1.5 Lakh

CASES 
     

FORIEGN BODY Abdominal sponges Chanchal oswal v santokhba Durlabhji Memorial Hospital 1995 CPJ 42 GAUGE WAS NEITHER PRESERVED NOR SEND FOR CHEMICAL NALYSIS . DISMISSED Aleyamma Vergese v. Dewan Bahadur 1997(1) CPR 310 Sponge count duty of nurse Hospital liable vicariously Beti Bhai Saxena v. Dr S L Mukherji Hip Surgery Affidavit from second Doctor filed Negligent 

  

CASES 
 

Wrong Blood Transfusion PGI Chandigarh v.Jaspal Singh 2 lakh

CASES 
        

POST OPERATIVE FEES BShekhar Hegde v.Dr Sudhanshu Bhattacharya II 1992 CPJ 449 Bombay hospital, CABGCABGNot seen in post op as post surgery fees Died wound infection 2lakh +1000 cost SEPTECEMIA Fakuruddin Abbas Bharmal v Dr B Das Guptaiii1998CPJ 677 HerniaHernia-Died No Blood culture SENSTIVITY Reports 3.85 Lakhs

Liability 


Primary Vicarious (Secondary) Hospitals has primary liability for the deficiency in service . Equipments ICU
Basant Seth vs. Regency Hospital Ltd.2002 (2) CPR62(NC) Kannan VR VS. Sree Sudhendra Medical Mission 2002(2) CPR186  

 


Vicarious Liability 

For DOCTORS , Nurses, Technician and paramedics , others State Govt. 

Jurisdictions 

If a matter is already sub judice in a civil court claim is not maintainable in consumer forum..
Savita Y Chaudhary v. Dr Ghanshyam G Kochage 1994(1) CPR 863  

Two different kinds of negligence Vehicle Act and CPA .

e.g. Motor

Reasonable Degree     

Departure from normal established mode of treatment .. Diagnosis, treatment, follow up instructions, & records. Not all deviations from established mode can be labeled as negligence Expert evidence plays a vital role
Dr Laxman Blakrishanan joshi vs. Dr Trimbak Babu Godbole AIR1996 sc 128

Andhra Pradesh Ordinance Against the Violence on Doctors and Medical Establishments  

                   

December 18, 2007
Any act of violence against medicare service person or damage Prohibition to property in a Medicare service Institution is hereby prohibited. of violence 4. Any Offender who commits any act in contravention of Section 3, penalty shall be punished with imprisonment for a period of Three years and 56 with fine, which may extend to fifty thousand rupees. 5. Any offence committed under Section 3, shall be cognizable and non cognizance of Bailable. Offence Bailable. Offence 6.(1) In addition to the punishment specified in section 4, the offender recovery of shall be liable to a penalty of twice the amount of purchase price loss for the of medical equipment damaged and loss caused to the property damage as determined by the Court trying the offender. Caused to the property 6.(2) If the offender has not paid the penal amount under sub-section (1), subthe said sum shall be recovered under the provisions of the Andhra Pradesh Recovery Act, 1864 as if it were an arrears of land revenue due from him. 7. The provisions of this Ordinance shall be in addition to and not in Ordinance not derogation of the provisions of any other law, for the time begin in force. in derogation of any other law

Check list 

(e.g. effects of vigabatrin on visual fields, effect of phenytoin on teeth and gums, effect of valproate on weight and menstrual cycle), interaction of antiepileptic drugs (AEDs) with other medication (e.g. oral contraceptive pill, warfarin), and teratogenic potential of AEDs.

Delhi Medical Council DMC 
  

Statutory Body passed by Legislative assembly DMC Act 1997 Functioning .Maintain register of all medical .Maintain practitioner etc Receive the complaints from public against misconduct or negligence by medical practioner , inquest decision etc  



Suo motu action in respect to misconduct
Take action against frivolously complaints To provide protection to its members in discharging professional duties

DMC Act 1997
Disciplinary Council
Chairman  MLA nominated by speaker  Legal Expert nominated by council  Eminent public man nominated by Government  Medical specialist in area of specialization nominated by council  Nominated member by DMA PRESIDENT All the inquiries conducted are deemed to be judicial proceedings within meaning of section 193,219,228 of IPC 

Actions under DMC  

 

Enforce attendance of any person to examine him on oath Compel the production of document Issuance of commission for examination of witness Remove the name from register temporary or even permanent

Neurosurgery Case List in DMC    

CAD Patient fell from Bed- ICH- Operated Bed- ICHdied. RSARSA- No MLC made- fully conscious madedied 7th day ( From MM) Hydrocephalus VP Shunt dieddiedIncompetent Doctor as complaint Thalamic mass dies following surgery

Neurosurgery Case List in DMC 
   

Colloid cyst died following surgery HT hematoma died after surgery RSA died after months Contrary post mortem report RSA - Poly trauma dies after fracture treatmenttreatment- Different Post mortem findings SAH Died due to wrong diagnosis as TBM

Neurosurgery Case List in DMC    

Stroke died- No CT/ MRI- Non availability diedMRIof ambulance to transfer Stroke died -Suction not working, Electricity plug not working CP Angle died- Option for Gamma Knife diednot given Fabricated Consent as alleged..

CPA 


Consumer protection councils Consumer Dispute Redressal Agencies

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