The medical profession is considered a noble profession because it helps in preserving life. We believe life is God given. Thus, a doctor figures in the scheme of God as he stands to carry out His command and doctors have the highest responsibilities over the life of a patient and has its own ethical parameters and code of conduct. However, this profession requires advanced education and training which calls for continuous updating. A patient generally approaches a doctor/hospital based on his/its reputation. Expectations of a patient are two-fold: doctors and hospitals are expected to provide medical treatment with all the knowledge and skill at their command and secondly they will not do anything to harm the patient in any manner either because of their negligence, carelessness, or reckless attitude of their staff. Though a doctor may not be in a position to save his patient’s life at all times, he is expected to use his special knowledge and skill in the most appropriate manner keeping in mind the interest of the patient who has entrusted his life to him. At the same time, a doctor has ethical and legal obligations, and he needs to abide by the laws of the land while discharging his duties. The duties which a doctor owes to his patients are:
A breach of any of these duties gives a right of action for negligence to the patient. Therefore, it is expected that a doctor carries out necessary investigation or seeks a report from the patient. Furthermore, unless it is an emergency, he obtains informed consent of the patient before proceeding with any major treatment, surgical operation, or even invasive investigation. Failure of a doctor and hospital to discharge this obligation is essentially a tortious liability. A tort is a civil wrong (right in rem) as against a contractual obligation (right in personam) – a breach that attracts judicial intervention by way of awarding damages. Thus, a patient’s right to receive medical attention from doctors and hospitals is essentially a civil right. The relationship takes the shape of a contract to some extent because of informed consent, payment of fee, and performance of surgery/providing treatment, etc. while retaining essential elements of tort.
A victim can seek any of the following actions against a negligent medical professional.
Compensatory action: Seeking monetary compensation before the civil courts, high court or the consumer dispute redressal forum under the constitutional law, law of torts/law of contract, and the Consumer Protection Act. Punitive action: Filing a criminal complaint against the doctor under the Indian Penal Code (IPC).
Disciplinary action: Moving the professional bodies like Indian Medical Council/State Medical Council seeking disciplinary action against the health-care provider concerned.
Re-commendatory action: Lodging complaint before the National/State Human Rights Commission seeking compensation.
Accountability of Medical Professional
It has been argued by the medical association in Shantha’s case that the medical practitioner should be kept out of the purview of the Consumer Protection Act 1986 as there is scope for disciplinary action under the Medical Council Act for violating the code of medical ethics and for the breach of duty to exercise reasonable care and skill in rendering medical service to the patient. The Supreme Court held that the medical practitioners are not immune from a claim for damages for negligence. The fact that they are governed by the Medical Council Act and are subject to the disciplinary control of the medical council is no solace to the person who has suffered due to their negligence, and the right of such person to seek redress is not affected.
Accountability of Healthcare industries
Hospitals liability with respect to medical negligence can be direct liability or vicarious liability. Direct liability refers to the deficiency of the hospital itself in providing safe and suitable environment for treatment as promised. Vicarious liability means the liability of an employer for the negligent act of its employees. An employer is responsible not only for his own acts of commission and omission but also for the negligence of its employees, so long as the act occurs within the course and scope of their employment.
Common Errors by Medical Professionals
Patients sue because of a feeling that they were not heard, that their needs were not attended to, and that nobody seemed to care, and as a result, a bad outcome resulted due to a mistake or negligence. Some of the instances where errors do happen by medical professionals are as follows:
Avoidance
Compassionate gestures count. If a hospitalized patient has a bad outcome, some physicians may avoid making rounds in the presence of relatives. It is important to let the patient and their caregivers to know that as a treating doctor their problems are understood. It is a good practice to maintain eye contact while addressing the patient and put a comforting hand on the individual’s arm (comforting touch).
Defensive medicine
It is better to avoid practicing defensive medicine. Particularly when affordability is an issue, victim is very likely to complain. Moreover, it amounts to medical malpractice (a medical practitioner intentionally advising unwanted investigation).
Failure to communicate
Communicate clearly and effectively. Take time to ensure your patient understands their diagnosis, treatment, and medication plans, and then check their understanding by asking them to explain it back. This ensures instructions are properly followed and demonstrates your care toward patients
Patient time
The time spent allowing the patient to fully explain his/her concern determines the physician’s ability to show concern, empathy, and likeability. The longer the quality time a physician spends with the patient, the less likely will that physician be sued.
Failure to diagnose
Failure to diagnose is the number one reason a physician gets sued for medical malpractice. A techno-savvy patient may give/explain/ask more information or psychologically less sophisticated patient may withhold the information and make diagnosis difficult.
Failure to identify a complication
If a certain complication is a known risk, it should be on the consent form for the medical procedure. However, the consent form need not list every single complication that has ever occurred for that procedure. Often there are mistakes in communicating the complications. If, for example, the complication is known to occur 10% of the time during a given procedure but the consent form states that it occurs only 1% of the time, then the consent form was wrong.
Prescribing errors
Before prescribing any medication, a physician should be aware of all medications the patient is taking, including over-the-counter drugs and alternative medicines. Physicians should reinforce the importance of taking the medications only as prescribed. Patients should be advised that if they feel any medication is not having its intended effect, they should immediately contact their physician. An important way to prevent inadvertent drug interactions is by working in concert with hospital pharmacists. Avoid handwriting prescriptions and utilize instead electronic medical recording with electronic prescribing.
Inadequate follow-up
There are instances when tests results are not received by the ordering physician. On other occasions, patients do not follow through with tests as directed or the results come in are filed away before the physician reviews them, and the patient is not briefed about the findings. It is essential that physicians and their staffs are able to track the status of these orders to make sure that none are overlooked or forgotten. Another aspect of care needing better follow-up involves referrals to specialists. Every step has to be documented not only for preventing medico-legal issues but also for good patient care as well.
Following Sections of Indian Penal Code are related to medical profession:-
No human being is perfect and even the most renowned specialist could make a mistake in detecting or diagnosing the true nature of a disease. It has been held in different judgments by the National Commission and by the Honorable Supreme Court that a charge of professional negligence against a doctor stood on a different footing from a charge of negligence against a driver of a vehicle. The IPC describes in following sections below regarding this difference:
IPC 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. Good faith implies genuine belief on the part of the doctor that his/her act of omission or commission would be in the best interest of the patient. The onus lies on the defendant (doctor) to prove that not only the good intentions but also a reasonable skill and care are exercised for the discharge of duty.
IPC Section 80: (Accident in 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. Accident implies without the prior knowledge or intention of causing the evil effect.
IPC Section 88: (Act not intended to cause death, done by consent in good faith for person’s benefit). 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 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. The section highlights the importance of acting on good faith and with informed consent of the patient.
IPC Section 89: It is similar to IPC Section 88 with the point of view of consent in case of children below 12 years and persons with a mental disorder where a guardian is authorized to give consent.
IPC Section 92: (Act done in good faith for benefit of a person without consent). Nothing is an offense by reason of any harm which it may cause to a person for whose benefit it is done in good faith, even without that person’s consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent and has no guardian or other person in lawful charge of him/her from whom it is possible to obtain consent in time for the thing to be done with benefit. In all such cases, it is prudent to involve another senior colleague in making the decision and recording in detail the justification or circumstances under which the decision was taken.
IPC Section 93: (Communication made in good faith) No communication made in good faith is an offense by reason of any harm to the person to whom it is made if it is made for the benefit of that person. However, the doctor would be prudent enough to ensure that the communication is based on verifiable facts of the case, in a good faith for the benefit of the person it was made and in view of the delicacy of the matter, conveyed appropriately in the presence of spouse/relative/guardian.
Criminal Procedure Code Section 174: This section does not preclude the right of aggrieved relatives of a deceased patient to prosecute the doctor for criminal liabilities under IPC Section 304A (whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term, which may extend to 2 years, or with fine, or with both), it prevents doctors from being arrested immediately after the unfortunate death of a patient. It also offers doctors an opportunity for being assessed by their peers for any of the alleged professional lapses.
When to Inform Police in our Daily Medical Practice to avoid Above Medico Legal Issues and Challenges in Healthcare System.
A doctor has to inform the police in following circumstances (personal communication Dr. Jayat Navrange). Failure to inform police in such cases may result in penal consequences. Police must be informed in:
It is advisable to inform police in following circumstances: –
o accidents not related to medical management like fall from staircase etc., though there is no legal obligation on doctor, it is advisable to inform the police,
o unexpected or rare complications may occur sometimes, e.g. a child may vomit, aspirate the content and may die. This is very unpredictable and it is not obligatory on part of the doctor to inform such deaths. But it is better if we inform the police because sometimes patient’s relatives may allege negligence in such cases. In cases of death due to negligence in treatment there are no specific provisions to inform the police but in order to avoid untoward incidences it is better to inform the police.
“Brought dead cases”: In such cases, if the cause of death is apparent and there are no reasonable grounds to suspect some medico-legal complications then it is not necessary to inform the police. If the cause of death can’t be ascertained in any case, then it is desirable to send the body for postmortem examination preferably with the help of the police. It is advisable to suggest postmortem in the following circumstances:
Information to police shall preferably be in writing and the written acknowledgement should be obtained. If the information is telephonic one must note down name, buckle number and designation of the police.
The practice of medicine is capable of rendering great service to the society provided due care, sincerity, efficiency, and skill are observed by doctors. The cordial relationship between doctor and patient has undergone drastic changes due to the corporatization of medical profession, resulting in commercialization of the noble profession, much against the letter and the spirit of the Hippocratic Oath. Although rapid advancements in medical science and technology have proved to be efficacious tools for the doctors in the better diagnosis and treatment of the patients, they have equally become tools for the commercial exploitation of the patients. Medical law is undergoing a massive change. The development of law pertaining to professional misconduct and negligence is far from satisfactory. The legislation are not adequate and do not cover the entire field of medical negligence. Lawsuits for medical negligence can be minimized or avoided by taking steps to keep patients satisfied, adhering to policies and procedures, developing patient-centered care, and knowing ways of defending against malpractice judgments. Having comprehensive professional liability, insurance is a necessity in the present-day litigious society.
Jai Hind & Healthy Regards…!!!!!
BALDEV BATRA
Youngest Healthcare Management Consultant and Medico-Legal Expert | Listed in India Book of Records.
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