LAWS RELATING TO MEDICAL MEN LECTURE II

Transcription

1 LAWS RELATING TO MEDICAL MEN LECTURE II LEARNING OBJECTIVES At the end of lecture series students should/must be able to Define consent, types of consent, rules for taking consent, criteria for valid consent Define Medical Negligence and differentiate it from Error. List duties of doctor and patient. List different behaviors of doctor. List and define types of negligence. List and describe methods to avoid it. List and describe defenses against negligence. CONSENT. When two or more persons agree to the same act in the same sense it is known consent. TYPES OF CONSENT: IMPLIED CONSENT. It is neither written nor verbal and is applicable in cases of real emergency. When a patient having serious injury comes to the hospital and presents himself before the medical practitioner, his condition demands that no time should be wasted in the start of the medical treatment. Such circumstances imply that the patient has already consented and is legally valid. Continue 2. EXPRESSED CONSENT. It should betaken from all patients other than those of emergency. Here the patient should know all the details of treatment and then give consent. Expressed consent may be ORAL OR WRITTEN. 3. BLANKET CONSENT. Is one obtained without fully explaining the proposed treatment. This type of consent is not valid LEGALLY as the patient being the owner of his body must understand to what he is consenting. RULES OF CONSENT: Legal validity of consent obtained is based on certain rules and formalities maintained in obtaining it. This includes Consent should be always Free Voluntary Informed Clear Direct Criteria for giving consent Mentally sound

2 Not under any fear/threat Not under false conception Not under intoxication Above the age of 12 years for surgical procedures Or in short remember 3 I s Insanity Immaturity Intoxication Doctrine of informed consent (Synonym: Rule of full disclosure) This is essential in medical practice, when diagnosing or treating is beyond the routine methods, wherein risks are involved. Doctor should explain all relevant details to the patient such as: About the disease About the diagnostic tests About the treatment plan that is proposed and other possible alternatives About the risks involved and prognosis This is called rule of full disclosure. However Doctrine of Therapeutic Privileges and Doctrine of emergency are exemptions to this rule. Consent and certain deviations/exemptions Though rules and formalities of consent are rigid in their legal implications, certain deviations are always allowed and they are Doctrine of therapeutic privilege At times it may not be possible to explain every thing to the patient. According to this doctrine details may be revealed to any one of the close relatives of the patient eg. Patient who is to undergo cardiac surgery and the patient is scared of cardiac surgery, he or she may not be told about the details but any one of the relatives shall be made aware of everything about the proposed surgery and the surgery can be performed telling the patient that it is minor surgery. Doctrine of emergency According to this, a doctor can give the treatment without taking consent from the patient who is, Gravely sick, Unconscious or Not able to understand the suggestions (Mentally ill) In such situations law presumes that consent is deemed to be given under sec 92,PPC. Section 92, PPC Nothing is an offence by reasons of any harm which it may cause to a person for whose benefit it has been done in good faith, even without that person s consent, if circumstances are such that it is impossible for that person to sign consent, or if the person incapable of giving

3 consent and has no guardian or other person in lawful charge of him from whom it is possible to obtain consent in time for thing to be done with benefit e.g. a victim of a road traffic accident who is unconscious and with evidence of intracranial trauma clinically, requiring necessary surgery to save life. Doctor need not wait to take the consent, can proceed with surgery. Doctrine of Locoparentis In emergency situations involving children, when their parents or guardian are not available, according to this doctrine consent can be obtained from the person accompanying. E.g. a school teacher can give consent for treating a child acutely ill while on a picnic far away from hometown. Consent and Age: Rules regarding the age and eligibility to give consent in medical practice have following mandates: A person who is above 18 years can give valid consent to suffer any harm which may result from an act in good faith and which is not intended or known to cause death or grievous hurt. Minimum age for giving valid consent for medical examinations is 12 years. Professional Negligence Omission to do something which a reasonable man would do. OR Doing something which a reasonable man would not do. PROFESSIONAL NEGLEGENCE (Malpraxis) It means a lack of reasonable care and skill and willful negligence on the part of the doctor in the treatment of his patient, so that this want results in the causation of bodily harm and financial loss to the patient by way of multiple consultations, prolonged treatment, or loss of life itself. A general practitioner must not pose as a specialist and specialist must be well conversant with his subject: The action because of lack of skill, care or willful negligence maybe brought against the doctor in a civil or a criminal court by those who suffered due to this shortcoming. The malpraxis is therefore classified into civil and criminal malpraxis.

4 MEDICAL NEGLIGENCE Civil Malpraxis: Here the doctor is sued for damages or compensation in a civil court for causing bodily injury because of negligent handling or unskilled treatment. He is held responsible for the faults of his associates and assistants, since it is presumed that whatever they do is done under his supervision and directions. However the burden of proving this negligence rests on the complainant. It is to be proved that the damage was solely due to the doctor s or his associate s negligence and the patient s own behavior had no contribution. The doctor is sometimes accused in the courts of having his patient subjected to experiments with new drugs and methods. So while trying new drugs and methods, it should be fully explained to the patient and his written consent taken. CRIMINAL MALPRAXIS Here a criminal case is lodged against the doctor for the following reasons. Death or bodily harm resulting from acts of commission or omission of doctor in the treatment of a patient. For abusing his responsibility in issuing a false certificate. Causing miscarriage or abortion or helping his associates or assistants in doing so even an attempt at causing abortion is a criminal malpraxis. 4. Failing to inform the Police in cases of cognizable offences coming up to him or failing to record dying declaration in cases who are very serious and when the help of the judiciary is not available: 5. Medial Examination of a person without his specific written consent even under the instructions of the Police or the Court. Medical Examination of a woman s private parts without her consent given before a medical man and without the presence of another woman either his assistant or her relative is also a malpraxis. 6. Death under anaesthesia if it is proved that it was due to negligence or lack of proper care. CONTRIBUTORY MALPRAXIS. It is a type of Malpraxis in which both parties i.e doctor as well as patient are both partially responsible. CORPORATE NEGLIGENCE It is the failure of the persons who are responsible for providing the accommodation and other facilities necessary to carry out/ follow the established standards of conduct in a hospital. It

5 occurs when the hospital provides defective equipment or drugs, selects or retains incompetent employees or fail in some other manner to meet the accepted standards of care, which may result in injury to the patient to whom the hospital owes duty. RES- IPSA LOCUOTAR:- ( MATTER SPEAKS FOR ITSELF ) In malpraxis there is lack of reasonable care and skill and willful negligence on the part of the doctor in treatment of his patient, so that this lack results in causation of bodily harm to the patient. The action because of lack of skill, care or willful negligence may be brought against the doctor in the court of law; however the burden of proving this negligence rests on the complainant. It has to be proved that the damage was solely due to the doctor s negligence and patient s own behavior or action had no contribution, but some times the damage is clearly visible, where we apply the term Res ipsa locuotar i.e. the matter speaks for itself e g a person went for treatment of two stiff fingers and ultimate result of treatment was four stiff fingers and a useless hand, which should have not occurred if there was sufficient skill and care in treatment. NOVUS ACTUS INTERVENIENS Rarely is it reported that the damages have occurred due to new action which intervene the treatment. In such cases concerned doctor is not held responsible, as he has no control over the circumstances, e.g. An ambulance carrying a serious patient may get involved in a road traffic accident and the patient may die. VICARIOUS LIABILITY Physicians usually employ or supervise other less qualified health team members they therefore owe their patients the duty in assigning supervision to the nurses or sub ordinate staff properly. The duty may create vicarious liability where by one person may be liable for wrong full acts or omissions of another. The simplest doctrine is known as Respondent superior (let the master answer) and states that an employer is liable for negligence of his or her employees. Doctors may also be vicariously liable under other legal doctrine for negligence of hospital employees they supervise. e.g. surgeons have been sued for the errors and omissions by the operating room personnel under the captain of the ship doctrine. This doctrine holds a surgeon liable for the legal action based on the fact that he or she exercises absolute control much like the captain of a ship at sea who is responsible for all the wrong doings by the crew. Borrowed servant doctrine this refers to vicarious liability in relation to patient admitted to a private hospital by a private practitioner who is not a staff of the hospital. Here, the private practitioner will be held responsible for all the negligent acts by any of the hospital staff on the patient admitted by him. The hospital will not be held liable because all the instructions for the patient admitted is carried on by the hospital staff as told by the private practitioner. Incase of negligent acts by interns / trainee doctors the hospital or unit head will be liable for all the negligent acts of interns who are appointed by the hospital on salary. However this will not be so if the negligence complained of comes under the preview of Doctrine of common knowledge according to this the doctor may be charged for negligent act for failing in involving application of common sense and routine practice e.g. necessity of fluid therapy for a dehydrated patient suffering from severe gastroenteritis is matter of common

6 sense or common knowledge. If doctor fails to do the needful in such a case he will be responsible for his act of negligence. 5 D S FOR PLAINTIFF S SUCCESS Duty. Dereliction. Deliberately not doing a thing which ought to be done Damage. Direct cause. Deficient Informed consent. Compensation For Medical Negligence May Include Loss of past and future income Care for the past and care for the future Medical expenses and prescriptions Pain and suffering including psychological damage Loss of amenities of life Reduced employment prospects Legal expenses A plaintiff must establish all four elements of the tort of negligence for a successful medical malpractice claim. A duty was owed: a legal duty exists whenever a hospital or health care provider undertakes care or treatment of a patient. A duty was breached: the provider failed to conform to the relevant standard care. The breach caused an injury: The breach of duty was a proximate cause of the injury. Damages: Without damages (losses which may be pecuniary or emotional), there is no basis for a claim, regardless of whether the medical provider was negligent. Likewise, damages can occur without negligence, for example, when someone dies from a fatal disease. DEFENSES FOR DEFENDANT DOCTOR No duty. No breach of duty. Frivolous allegations. Silly or amusing Vexatious allegations. Making you feel upset or annoyed Defamation. Absence of autopsy. Time barred. DEFENSES FOR REDUCING DAMAGES Contributory negligence. Joint or several negligence.

7 Vicarious liability. Product liability. Liability insurance. TYPES OF MEDICAL BEHAVIORS Aggressive Medicine. Defensive Medicine. Defensible Medicine. Integrative Medicine. AGGRESSIVE MEDICINE In the best interest of patient. Paternalistic attitude. No fear of future litigation. DEFENSIVE MEDICINE Medical practices designed to avert the future possibility of malpractice suits. In defensive medicine, responses are undertaken primarily to avoid liability rather than to benefit the patient. Doctors may order tests, procedures, or visits, or avoid high-risk patients or procedures primarily to reduce their exposure to malpractice liability. Ref: DEFENSIBLE MEDICINE Legally defensible practices. INTEGRATIVE MEDICINE. The terms "legally defensible, ethically appropriate, and clinically responsible" describe an aspiration for integrative medicine. Ref: HUMAN ORGAN TRANSPLANTATION: Though human tissues or organs anatomically speaking are of several types, but medico legally they of 2 types only. Regenerative e.g. blood, semen, bone marrow. Non- Generative e.g. Kidney, lungs, liver, heart. Concept of living and Cadaver donors: The surgeons are now turning to donors who are brain dead medical research and technological development has enabled medical practitioners to put patients on an artificial

8 respiratory system or a ventilator as it is popularly called. By this process the person s organs such as heart and lungs continue to work while the brain of the person is irreversibly dead. Thus, the concept derives also the terminology beating heart donors for the reasons that the organs can be removed from such brain dead patients who are declared dead but kept ventilated and circulated with oxygenated blood by ventilator and such artificial means. The proliferation of human organ trade for the purposes of transplantation during 1970s and 1980s has influenced the World Health Organization to develop a set of guiding principles on human organ transplantation. Accordingly it has been resolved that organs and tissues may be removed from the bodies of deceased and living persons for purpose of transplantation only in accordance with following guiding principles. 1. Organs may be removed from the bodies of deceased person for purpose of transplantation if a. Consent required by law is obtained b. There is no reason to believe that the deceased person objected to such removal in the absence of formal consent given during person s lifetime. 2. Organs for transplantation should be removed preferably from the body of deceased person. However adult living persons may donate organs but such donors should be genetically related to the recipients. 3. An organ may be removed from the body of an adult living donor for the purpose of transplantation if the donor gives free consent without any undue influence and pressure and sufficiently informed to be able to understand and weigh the risks, benefits and consequences of consent. 4. No organ should be removed from the body of the living minor for purpose of transplantation. 5. The human body and its parts cannot be the subject of commercial transactions. 6. Advertising the needs for or availability of organs with a view to offer or seek payment should be prohibited. 7. Physicians and other health professionals are prohibited from engaging in organ transplantation procedures if they have reason to believe that the organ concerned have been the subjects of commercial transactions. 8.Any person or facility involved in organ transplantation procedures is prohibited from receiving any payment that exceeds a justifiable fee for the services rendered. In light of above the transplantation of human organs act has been framed by the National assembly and will be enforced very soon. ############################################################################## #