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LAWS RELATING TO MEDICAL MAN

ETHICS:

• Means Study of general nature of morals and of specific moral choices to be made by an
individual in his rela<onship with others, the philosophy of morals.

• Implies principles or standards governing conduct of members of a society.

• Study of morality, moral problems and moral judgments.

Medical ethics:

Medical ethics deal with the moral principles, values and guidelines that govern the conduct and
rela<onship of doctor with his pa<ents, fellow doctors and the state.

Medical e;que>e:

Refers to conven<onal laws of courtesy observed between members of medical profession.

Code of medical ethics/code for medical prac;;oner:

• ADempts have been made to regulate conduct of medical prac<<oners.

• These regula<ons are called ‘code of medical ethics’ or ‘code for medical prac<<oner’.

• Hippocra<c oath – earliest code used to be sworn by Greek physicians.

• Interna<onal code of medical ethics – modern version of Hippocra<c oath:

o At the <me of being admiDed as a member of medical profession I solemnly pledge

myself to consecrate my life to service of humanity.

o I will give to my teachers the respect and gra<tude which is their due.

o I will prac<ce my profession with conscience and dignity.

o The health of my pa<ent will be my first considera<on.

o I will respect the secrets, which are confide in me.

o I will maintain by all the means in my power the honor and the noble tradi<on of
medical profession.

o My colleagues will be my brothers.

o I will not permit considera<on of religion, na<onality, race, party poli<cs and social
standing to intervene between my duty and my pa<ents.

o I will maintain the utmost respect for human life from the <me of concep<on, even
under threat I will not use my medical knowledge contrary to laws of humanity.
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o I make these promises solemnly, free and upon my honor.

Professional misconduct/infamous conduct/peer conduct/disgraceful act:

“If a medical man during his profession work, has done something, which will be reasonably
regarded as disgraceful or dishonorable by his professional brethren of good repute and competency,
then it is open to the medical council to say that he is guilty of infamous conduct in a professional
respect”.

Professional misconduct:

Type of abuse (5 As) Examples

1 Abuse of medical prac<<oner Issuing false medical cer<ficate
Privileges Prescribing drugs of addic<on for abuse
Disclosing of pa<ent’s secret
2 Abuse of doctor pa<ent rela<onship Indecent assault on pa<ent
Adultery with pa<ent
3 Abuse of professional knowledge Criminal abor<on
Dichotomy
4 Associa<ng unqualified person in professional Employing unqualified persons
work Assis<ng unqualified persons
Covering unqualified persons
5 Adver<sing and convincing with a view to have Not informing health authori<es about
unreasonable gains no<fiable disease

It is to be differen;ated from professional negligence:

Professional misconduct Professional negligence

1. Nature of offence
Viola<on of medical code of ethics Absence of care, skill and willful negligence
2. Damage to pa<ent
Need not to be present Present
3. Case hearing in
State medical council Civil, criminal courts
4. Appeal
To state/central governments To higher court
5. Punishment
Erasure of name Fine, imprisonment.
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Dichotomy/Fee spliLng/Fee sharing:

“Giving of a commission by one doctor to another for referring, recommending or procuring any
pa<ent for medical, surgical or other treatment is known as dichotomy/fee spli^ng/ fee sharing”.

Consent:

Free and voluntary agreement, compliance or permission given for a specified act or purpose,
based upon la<n maxim ‘Volen< non fit injuria’ means ‘he who consents cannot complain’ – founded on
two factors.

• Every pa<ent is best judge of his own interest.

• No man will consent to what he thinks is harmful to him.

Condi;ons necessary for valid contract:

CONDITION LEGAL STATEMENT

Age Every person who is of the age of majority is competent to contract (sec<on
11)
Soundness of mind a person is said to be of sound mind for the purpose of making a contract, if
at the <me he makes, he is capable of understanding it and of framing a
ra<onal judgment as to its effect upon his interest (sec<on 12)
Mutual consents Two or more persons are said to consent when they agree upon the same
thing in the same sense (sec<on 13)
Free consent Consent is said to be free when it is not caused by
a. Coercion
b. Undue influence
c. Fraud
d. Misrepresenta<on
e. Mistake
Consent is said to be so caused when it would not have been given but for the
existence of such coercion, undue influence, fraud, misrepresenta<on or
mistake (sec<on 14)

Role of consent in medical prac;ce:

• Consent is obtained by a doctor to examine, treat or operate a pa<ent.

• Trea<ng/examining a pa<ent without consent is considered as an assault on pa<ent.

• An adult who is conscious and have sound mind is at liberty to decline the consent for treatment
even if the result of his act doing so will result in his death.
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• Submission without full disclosure of the concerned act on the person does not amount to
consent. Doctrine of volen< non fit injuria cannot be applied in this case.

• For opera<ons, which are illegal or unlawful there cannot be any valid consent e.g. procuring
criminal abor<on.

Types of consent:

• Implied consent.

• Expressed consent.

• Blanket consent.

• Proxy consent.

Implied consent:

• Consent is presumed e.g.

o If a pa<ent enter in clinic, it is presumed that the pa<ent has came for examina<on and
consulta<on.

o In cases of real emergency.

• Not wriDen but legally effec<ve.

Expressed consent:

An expressed consent is one, which is stated in dis<nct and explicit language. Types are:

• Oral/ verbal consent.

o It is a consent, which is given verbally.

o Employed for minor procedures.

o In presence of a disinterested third party e.g. nurse or recep<onist.

o Oral consent, when properly witnessed, is of equal validity to that of wriDen consent.

• WriDen consent.

o Obtained in a wriDen format.

o Afford documentary evidence.

• Informed consent – when wriDen consent is obtained aeer explaining the nature and
consequences of the treatment procedure being contemplated is called informed consent.
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o Doctrine of informed consent – every person has the right to know, in non professional
terms, regarding.

▪ The disease.

▪ Diagnos<c tests.

▪ Treatment plan.

▪ Alterna<ve methods.

▪ Risks of procedure.

▪ Benefits from procedure.

▪ Prognosis.

o Excep<ons to informed consent.

▪ Emergency.

▪ Incompetence of pa<ent.

▪ Therapeu<c privilege – when disclosure of informa<on could have a detrimental

effect on pa<ent.

▪ Waiver – pa<ent may delegate the right to physician or to a third party

especially the close rela<ves to make decision for him.

Blanket consent:

• Consent, that is obtained without fully explaining about the proposed treatment.

• In cases of surgery.

• A printed form is presented to the pa<ent or his guardian for their signature at the <me of
admission into hospital or just before opera<on.

• Not valid in law, as consent is not taken for specific purpose or procedure but is broad and
vague.

Proxy consent:

• Consent not given by pa<ent himself but given by some other person on his behalf is called as
proxy consent.

• Surrogate consent is a proxy consent.

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Circumstances under which consent is not required:

• Emergency.

• No<fiable disease.

• Public interest.

• Public health.

• The court order.

• Prisoner.

• Immigrants.

• Medicolegal postmortem examina<ons.

• Armed forces, if medical examina<on is statutory requirement.

Doctrine of locoparen;s:

• In an emergency situa<on, involving children, where parents are not available or legal guardians
are not available, consent from person in charge of that child can be taken.

• e.g. if a child is ill and needs opera<on, the school teacher can give consent in absence of
parents of child.

• As per this doctrine, the teacher of child here is ac<ng as a local guardian of child i.e. local
parent.

Consent and medicolegal cases:

ML case Consent
Medicolegal autopsies Not required
Clinical or pathological autopsy Must
Medicolegal examina<on of vic<m Required
Medicolegal examina<on of accused Can be obtained
If not given, examina<on can be done without
consent

Consent of spouse:

Taken in following condi<ons:

• Termina<on of pregnancy.
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• Steriliza<on.

• Ar<ficial insemina<on.

• Dona<on of sperm/semen.

Informed refusal:

The doctor has a duty to inform the pa<ent that he has a right to refuse the treatment or
inves<ga<ons to be undertaken aeer having all the informa<on.

Advance direc;ves/living will:

Issuing or execu<on of advance direc<ves en<tles the pa<ent to refuse treatment at any <me in
future.

Professional secrets and confiden;ality:

Professional secret is one which a doctor comes to know in his professional capacity.

• Medical prac<<oner has an ethical, moral and legal du<es, not to divulge any informa<on
pertaining to his pa<ents.

• A doctor may be sued in court of law and liable to damages if divulge any informa<on without
excuse.

Excep;ons to professional secrecy – privileged communica;on:

Defini;on of privileged communica;on:

“A bonafide statement made by doctor upon any subject maDer to appropriate authority to
protect interest of community or of the state”.

Condi;ons:

The communica<on;

• Should be made to proper authority.

• Should be bonafide.

• Should be without malice.

• Should contain the facts alone regarding the issue.

Examples:

• Qualified privilege – it includes all official no<fica<ons of birth, death or disease (industrial,
infec<ous or contagious).
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• Absolute privilege – courts of law and parliament of the country has absolute authority to
receive such informa<on falling in the category of absolute privilege.

Medical Negligence/Professional Negligence/Medical Malprac;ce or Malpraxis.

Defini;on:

“Want of reasonable degree of care and skill or willful negligence on part of medical prac<<oner
while trea<ng a pa<ent resul<ng in bodily injury, ill health or death”.

1st defini;on of negligence:

“Negligence is omission to do something which a reasonable man could do or doing something

which a prudent and a reasonable man would not do” (Jus<ce Baron Alderson).

Classifica;on of negligence:

• Civil negligence.

• Criminal negligence.

• Contributory negligence.

• Novus actus interveniens/negligence of 3rd party.

• Therapeu<c misadventure.

• Medical maloccurrence.

• Product liability.

• Doctrine of Res Ipsa Loquitar.

• Doctrine of Respondent superior or vicarious responsibility.

• Doctrine of corporate liability.

1. Civil negligence:

Results from lack of carefulness in administra<on of treatment.

Examples:

• Extrac<on of a healthy tooth instead of diseased.

• Failure to X-ray fractured part.

• Failure to give an< tetanus vaccine following an injury causing disease to the pa<ent.
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Court procedure:

• Case is brought before a civil court.

• Compensa<on is done in terms of money.
• To be valid, the suit for negligence must be filed in a civil court within 3 years from date of
alleged negligence.
• Res Judicata – if the court has taken decision on a par<cular case, the same case cannot be
reopened in any other court.
• The burden of proof lies on plain<ff (pa<ent).
• In civil ac<on, plain<ff has to prove main elements of negligence (4Ds).
o The recognized legal right of pa<ent has been infringed.
o Existence of the Duty of care by the doctor.
o Failure of doctor to exercise such duty of care and skill i.e. Derilic<on of duty or breach
of duty by doctor.
o This breach of duty was the cause of injury or harm to pa<ent i.e. Direct causa<on.
o As a result of injury or harm the pa<ent had suffered Damage.
2. Criminal negligence:
Results from gross and wicked recklessness on the part of medical prac<<oner, showing
absolutely no regard for safety of pa<ents life.
Examples;
• Gross carelessness during treatment, anesthesia, opera<on or postopera<ve period.
• Not doing sensi<vity tes<ng when indicated.
• Injec<ng basal anesthe<cs in a fatal dosage or in the wrong <ssues.
• Amputa<on of the wrong finger, opera<on on the wrong limb, removal of wrong organ or errors
in liga<on of ducts.
• Opera<on on wrong pa<ent.
• Leaving instruments or sponges in abdomen or any other part of body.
• Leaving tourniquets too long.
• Giving wrong or infected blood.
• Gangrene aeer too <ght plastering or paralysis aeer splints.
• Dressing with corrosives instead of bland liquids.
• Performing a criminal abor<on or criminal opera<on.
• Mismanagement of delivery under the influence of alcohol/drugs.
Differences between civil and criminal negligence:
FEATURES CIVIL NEGLIGENCE CRIMINAL NEGLIGENCE
Offense No specific and clear viola<on of Specific viola<on of a par<cular
law criminal law in ques<on
Negligence Absence of care and skill Gross negligence, inaDen<on or
lack of competency
Conduct of doctor Compared to a generally Not compared to a single test
accepted standard of
professional conduct
Consent for act Good defense in court Not a defense
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Trial Civil court Criminal court

Evidence Strong evidence is sufficient Guilt should be proved beyond
reasonable doubt
Punishment Damages to be paid Imprisonment

3. Contributory negligence:

• It is a combina<on form of negligence.

• Pa<ent is also responsible and contributed to the injury/ damage suffered by him.

Examples:
• Not giving correct history to doctor.
• Not following the instruc<on and advise of doctor.
• Failure to aDend treatment at prescribed <me.
• Tampering with wound dressing/plaster etc.
Burden of proof lies on defendant (doctor), if this plea is accepted by court, doctor is not held
responsible for the damage.

4. Novus actus interveniens/negligence of third party:

• It means an unrelated ac<on intervening.

• Pa<ent might suffer damage or harm due to new ac<on, which intervene or intercede the
treatment.

• Doctor may not be held responsible.

Example:

• Suppose an operated pa<ent is shieed to recovery room and suddenly, due to earthquake,
ceiling falls over the pa<ent and the pa<ent dies in accident.

• There the falling of ceiling is a new interven<on that has occurred.

5. Therapeu;c misadventure:

A mischance or accident or disaster, in which an individual may be injured or die due to some
uninten<onal act of doctor or hospital.

Types:

• Therapeu<c – when treatment is being given.

• Diagnos<c – when diagnosis is being done.

• Experimental – where the pa<ent had agreed to serve as subject in an experimental study.
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• The doctor would be held responsible only, if he failed to.

o Draw the pa<ent’s aDen<on to poten<al risks.

o Take the possible steps to avoid such mishaps.

Examples:

• Anaphylaxis to drug like penicillin.

• Radiological procedure may prove fatal due to adverse reac<on to dye used for contrast.

6. Medical maloccurrence/act of God/inevitable accidents:

• In some individuals, despite giving good medical care and skill, the pa<ent may suffer or
does not respond properly to treatment, due to biological varia<on, this is known as medical
maloccurrence.

• Doctor would not be held responsible if he exercised reasonable degree of care and skill.

7. Product liability:

The manufacturers of drugs and medical equipment have a legal duty to protect the public
against unreasonable risks of injury associated with their products.

Condi;ons:

To succeed in a claim for damages, the plain<ff must prove that.

• The product was defec<ve when it was sold.

• It did not conform to implied warranty because of defect.

• The defect was the proximate cause of injury.

Examples:

• Unpredictable drug reac<on as a result of negligence in its development process.

• Sudden failure of heart assist devices, permanent pace makers and other prosthe<c
devices.

8. Doctrine of Res Ipsa Loquitar:

• Means ‘the things or facts speak for itself’.

• A rule of circumstan<al evidence that gives rise to an inference of responsibility for an injury
or damage.
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• Facts of case are sufficient to jus<fy the conclusion that doctor was negligent for the harm
suffered by plain<ff (pa<ent).

• Burden of proof is shieed from the plain<ff to one of disproof by the defendant (doctor).

Examples:

• Amputa<on of wrong limb or digit.

• Leaving a swab or instrument in abdomen of pa<ent aeer opera<on.

• Giving medicine carelessly or prescribing overdose of medicine producing ill effect.

• Live electric cautery lee unaDended on skin of pa<ent to burn it.

• Anesthesia machine with gases on connected with the pa<ent and lee unaDended to over
anesthe<ze the pa<ent.

Condi;ons:

To prove doctrine of Res Ipsa Loquitar, following condi<ons should be sa<sfied;

• That in absence of negligence, the injury would not have occurred.

• Pa<ent has not contributed to negligence.

• Doctor had exclusive control of circumstances or injury producing instruments or treatment.

Applica;on:

• Applied to both civil and criminal negligence.

• Cannot be applied against several doctors.

9. Doctrine of respondent superior/vicarious responsibility:

• Literally means – let the master answer.

• For any negligent act of subordinate, the master or superior authority can be held
responsible.

Condi;ons:

To prove this doctrine, following criteria should be sa<sfied.

• Must be employer – employee rela<onship.

• While on job.

• Employee conduct within the job of employment.

10. Doctrine of corporate liability/corporate negligence:

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A corporate house or hospital may have a duty to properly select the persons of professional
competence.

Condi;on:

To prove it, the plain<ff would have to show that the hospital was aware that the physician
associated with the hospital was providing substandard care.