Medical Law & Ethics

Ethics is a voluntary self imposed conduct by the medical profession.

DUTIES OF MEDICAL PRACTITIONERS

• Duty refers to obligation to act or refrain from acting in such a way that a patient’s medical condition is appropriately diagnosed and managed so that a patient is not exposed to unreasonable risk of injury

I .Duty to exercise a reasonable degree of skill and knowledge As soon as doctor gives advice and counseling over the phone, a legal duty to the patient arises Exception might be in case of emergency where life saving instructions can be given over the phoneIf no advice is given , no duty arises.He owes his duty even when the patient is treated free of charge.

II. Duties with regards to attendance and examination

• When doctor agrees to attend the patient , he is under the obligation to attend the patient as long as it requires the attention

• He cannot withdraw the without the consent of the patient .• He can withdraw in the following conditions• He himself becomes sick• In case of malingering• He is taking other prescription than that he prescribed• His instructions are being ignored• Another doctor is also attending the same patient• Patient is taking some intoxicants or poisons• There is no law to attend the patient except during military

operation and in emergency condition

III. Duty to furnish proper and suitable medicines

• If doctor has his own dispensary , he should furnish the patient with suitable medicine.

• doctor is held responsible for any temporary or permanent damage in health ,caused to the patient due to wrong prescription.

IV. Duty to give instructions• Advice regarding the medicine and diet.

• Mention the proper timing and dose of taking medicine.

• Advice regarding the adverse reaction

V. Duty to control and warn• The doctor has a duty to warn the

patient about the medical condition and treatment that could injure other e.g. epileptic patient or affect the functional ability e.g. driving the car or operating the machinery.

VI. Duty to third party• If patient is suffering from some

infectious disease ,the doctor should warn not only the patient but also the third party whoever is in close contact with the patient like the relatives ,friends , family members etc.

VII. Duty towards the children and adult incapable of taking care of

themselves

• Special care to children , adults with insanity and disability should be given to prevent accident or injury

VIII. Duty to inform patient of risk

• Doctor must inform the patient regarding the special risk of any drug or or treatment or procedure which the doctor knows and patient does not know. He should also obtain the consent .

IX. Duty with regard to poison

• Doctor should give immediate treatment.

• He should assist the police in

determining whether the poisoning is accidental ,suicidal , or homicidal.

X. Duty to notify certain disease

• Doctor is bound to give information of the communicable disease to the public authority. Eg Small pox ,Chicken pox ,Cholera ,plague ,Typhoid ,Measles ,Diphtheria ,Yellow fever ,Food poisoning

XI. Duties with regards to operations

• He should explain the nature and extent of operation.

• Care to avoid the mistake , such as wrong patient or wrong limb.

• He must be informed of current standard practice and must follow it.

• He must use proper and sterilized instruments

• Postoperative care must be taken.

VII . Duties under Geneva conventions

• Four conventions.• Person it protects , whether wounded or sick of ; Armed forces (First convention) Ship wrecked person (Second convention) Prisoners of war (Third convention) Civilians of enemy nationality ( Fourth convention) Are to be treated without any adverse distinction

based on sex ,race ,nationality or other criteria.

XIII. Duties with regard to consultation

• Consultation should be advised in the following conditions

1. If patient requests the consultation2. In the emergency3. Case has become serious4. If quality of care of management can be enhanced5. In homicidal poisoning6. In therapeutic abortion 7. In criminal abortion if it has already been performed8. Operation of a patient with serious injuries

XIV . Duty in connection with X-Ray examination

• As far as possible , all cases of accident unless they are minor, should be x-rayed.

XV. PROFESSIONAL SECRECY(CONFIDENTIALITY)

• It is implied term of contract between the doctor and his patient.

• The doctor is obliged to keep secret , all that he comes to know concerning to the patient in the course of his professional work

• Its disclosure would be failure of trust and confidence.

• The patient can sue the doctor for damages (mental suffering ,shame , or humiliation), if the disclosure is voluntary ,and has resulted in the harm to the patient and is not in the interest of public.

• A doctor should not discuss the illness of the patient to another without his consent.

• If the patient is a major , the doctor should not disclose his illness to his parents without his consent.

• The doctor should not answer any queries by third party without his consent.

• The doctor should not disclose any information about the illness of his patient without the consent of patient even when requested by a public or statutory body except in case of notifiable diseases.

• When doctor examines a Government servent on behalf of government , he can not disclose the nature of illness to the govt.without the patient’s consent.

• The doctor should not disclose the facts about the illness of the servant to the master.

• MO of a factory or firm should not disclose the result of his examination of employee to the employer without the consent of the employer.

• Prisoner under trial has right not to permit the doctor to disclose the nature of his illness to any person.

• If prisoner is convicted , he has no such right

• The identity of a patient is not to be disclosed in journals.

• Sex of unborn child is not to be disclosed.

• A doctor should not give any information to insurance company about a person who has consulted him before ,without the patient’s consent

Privileged communication• It is a statement made bonafide upon any

subject matter by a doctor to the concerned authority ,due to his duty to protect the interests of the community or of the state.

• The doctor should first persuade the patient to obtain his consent before notifying the proper authority.

• If the doctor discloses the professional secrets for the purpose of protecting the interests of community ,he will not be liable to the damages .

Conditions of privileged communication

• 1. Infectious diseases :

Patient suffering from infectious diseases employed as cook ,waiter ,teacher ,nurse etc if the patient refuses to accept the advice , the doctor can disclose about his illness to the employer.

• 2. Venereal diseases:• If a person suffering from syphilis

and is about to marry ,it is the duty of doctor to advice the patient not to marry till he is cured. If he refuses the advice , the doctor can disclose about his illness to the concerned woman or her parents

• 3. Servant and employees :

• If a person in any employment is suffering from such diseases which may endanger himself or to public , doctor should advice him to change his employment.

• If he does not follow the advice of doctor , he can disclose about his illness to the employer that he is not fit for that kind of employment.

4. Notifiable diseases• A doctor has statutory duty to notify

births , death , infectious diseases , etc., to the public health authorities

5. Suspected crime•

6. Patient’s own interest• Like patients with suicidal

tendency ,melancholia

7. Self interest• Both in civil and criminal suits

by the patient against the doctor ,evidence about the patient’s condition may be given

8.Negligence suits

9. Courts of law

Professional Negligence(malpraxis)

• Negligence is defined as doing something that one is not supposed to do, or failing to do something that is supposed to do.

• Professional negligence defined as absence of reasonable care and skill, or wilful negligence of a medical practioner in the treatment of patient which causes bodily injury or death of pt.

Due care

• it means such reasonable care and attention for safety of patient as their mental and physical condition may require.it should be proportionate with the known inability of patient to take care of him self

Civil negligence

the question of civil negligence arise • When a patient or in a case of death, any

relative bring suit in a civil court for getting compensation from his doctor, if he has suffered injury due to negligence.

• When a doctor brings a civil suit for getting his fees from the patient or his relatives, who refuse to pay the same

Civil negligence

Following conditions should be satisfied for proving liability of negligence-

1.Duty-existance of duty of care by the doctor2.Dereliction-failure on the part of doctor to

maintain applicable standard of care and skill3.Direct causation-failure to exercise a duty of

care may lead to damage4.Damage-would have been foreseen by a

reasonable physician

Res ipsa loquitur

In this the patient need not prove negligence in case where the rule of res ipsa loquitur applies, which means “the thing or fact speaks for itself”.

Nous actus interveniens

• A person is responsible not only for his action, but also for the logical consequence of those action.

• For plea of Novus actus interveniens an element of negligence is essential.

Contributory negligence• It is absence of ordinary care on the part of patient,

or his personal attendant, which combined with the doctor’s negligence, contributed to the injury.

• These include- failure to give accurate medical history to the doctor failure to cooperate with his doctor in carrying out all

reasonable and proper instructions. leaving the hospital against the doctor’s advice.

Contributory negligence

• The doctor can’t plead contributory negligence, if he fails to give proper instruction.

• This is only a partial defence. and court has right to fix liabilities between parties.

• The onus of proof lies entirely on the doctors.

Criminal negligenceit occurs if any one of the followings are

satisfied1.indifference to an obvious risk of injury to

health.2.Actual foresight of risk, but continue the same

treatment3.Appreciation of risk and intention to avoid it,

but showing high degree of negligence in the attempted avoidance

Criminal negligence

4.Inattention or failure to avoid, a serious risk which went beyond mere inadvertence in respect of an obvious important matter.

5.Contributory negligence is not a defence in criminal negligence.

Difference between Civil and Criminal negligence

Difference between Professional Negligence and Infamous conduct

Corporate negligence

Corporate negligence is the legal doctrine that holds health-care facilities, such as hospitals, nursing homes and medical clinics, responsible for the well-being of patients. If a health-care facility fails to maintain a clean and safe environment, hire competent and properly trained employees, oversee care and implement safety policies, it can be held liable for any harm to patients.

Vicarious liability

Vicarious liability occurs where one person is held liable for the negligent actions of another. It is commonly relied upon for negligence on the part of employees carrying out their duties. In most cases the employer will be vicariously liable for the employee’s negligence.

Defence against Negligence

1.No duty owed to the plaintiff.2.Duty discharge according to prevailing

standards.3.Misadventure4.Error in judgement5.Contributory negligence

Defence against Negligence

6.Res Judicata( S. 300,Cr.P.C)- Person can appeal once against doctor for a

negligence case. the plaintiff will not be allowed to file a second lawsuit for money damages using a different cause of action or claim

7.Res indicata- patient can appeal for suit of damage for

negligence against doctor with in two year only.

Misadventure

The term Misadventure is mischance or accident or disaster.

Misadventure is of three type-• Therapeutic-when treatment is given• Diagnostic• Experimental

Therapeutic misadventure

• It is a case in which an individual has been injured or had died due to some unintentional act by a doctor or agent of the doctor or the hospital.

• In it doctor is not liable for the injuries resulting from adverse reaction to drug unless some negligence on his part contributed to the cause of injuries.

Captain of the ship doctrine

• It is the legal doctrine which holds that, during an operation in an operating room, a surgeon of record is liable for all actions conducted in the course of the operation. The doctrine is a form of the "borrowed servant doctrine", in which a party usually liable for his, her, its, or their actions is absolved of responsibility when that "borrowed servant" is asked to do something that is outside of the bounds of policy.

Product liability

It is the area of law in which manufacturers, distributors, suppliers, retailers, and others who make products available to the public are held responsible for the injuries those products cause.

Medical Indemnity Insurance

It is a contact under which the insurance company agrees, in exchange for payment of premiums, to compensate the insured doctor as a result of his claimed professional negligence.

Euthanasia (Mercy Killing)

It means producing painless death of a person suffering from hopelessly incurable and painful; disease.

Types1.Active Euthanasia –it is an act of commission, e.g.

by giving large doses of drug to hasten death.2.Passive Euthanasia-it means discontinuing or not

using extraordinary life sustaining measures to prolong life.

Malingering

• Also known as shamming • It means conscious, planned feigning or

pretending a disease for sake of gain.