Laws are of 2 types:
Substantive-i.e. they lay down the principles and interpretation is very important
e.g. Indian Penal code, Contract Act, Evidence Act, Consumer act. POCSO. You need
to understand them well.
2. Procedural laws-e.g. Civil procedure code, CrPC, Bio-medical waste disposal, MTP
act, Registration, Stampact-you have to follow them by letter and not just spirit
. Usually, laws are a variable mix of both
Recent/forthcoming changes in laws:
1. Bombay Nursing Home Reg. Act 1949 to Clinical establishment Act 2010->Maharashtra CEA (yet to come)
2. Consumer Protection Act 2019 in place of CPA 1986
3. Mental Healthcare Act 2017-soon will be implemented in Maharashtra also
4. Rajasthan in April 2019 released a draft of the “right to healthcare” Act.
5. National Medical Council bill 2018-got applied fully from 2020-MCI quashed
6. HOTA (Transplant act) 1995, with amendments.
CPA 2019-Several changes are effected-It is very much applicable to the medical field. Now forum will
be called Commissions; jurisdiction depends on the cost incurred and not on compensation demanded;
the patient can file a case in the district of his residence; mediation and reconciliation added statutorily; up to 1
cr cases in district forum, Judicial members are not a must on the bench.-these are the salient features. V.P.
SHANTHAVIMA, SC,1995 OCT.over-rides any other conclusion.
IPC and Cr PC: S88 to 95 are saving clauses and the basis of consent. They define the age of consent also-$304
(A)-death caused by rash & negligent act without intention, not amounting to murder
Several sections on miscarriage, adultery, rape, criminal intimidation, grievous hurts etc
CrPC tells about summons, warrants, balls, anticipatory ball, compoundable offences etc.
When to inform the police?
PCPNDT, MTP etc-Esp. Important for OBGYN. to follow very strictly
POCSO-you may get caught inadvertently-It’s a new and very very strict act, without bail
All these laws involve criminal justice and hence the police Any sexual act below 18, even with consent
is now rape
• Many times, doctors face courts due to later matrimonial disputes-even years later
LATEST: PCPNDT & Form Fas they exist, are constitutional and have to be complied-3rd May 2019 SC
in FOGSI V Union of India WP(129/2017-so Form Fis most important!
Indian Contract Act Defines what is valid (& informed) Consent; Insurance systems
Principle of estoppels, ICA is Basically, civil law, 525 company i.e. non-profit company
• WHAT’S NEW:
1. Shop Act-Sept 2017-Every establishment (including clinic) employing>10, to
register-Rest all have to “intimate” to facilitator online, (though shop act is not applicable. Bombay
HC has given a stay now, till 23-11-17 when 1st hearing is ordered. Walt & watch!-but now 2019 Feb,
again made applicable)
2. Anti-cut law-Very much on cards. Penalty. Imprisonment. Anonymity clause removed
3. Bond completion or release certificate for issue or renewal of MMC reg. for those who have passed in 2010 and later 4. SC reminds of ethics! 2018-see the wording-In writ by Delhi Govt (& Uol also) v Delhi HC-2 judge bench of SC in July 2018-The fine imposed by Delhi govt. against trust hospitals who did not do charity, even if they got land concessional or free, was negated by Delhi HC-reversed by SCAND said 1. No refusal of Rx for poor in dire need for any medicine, modality of Rx or any expert 2. There has to be
balancing between human rights and commercial gains 3. Constitutional obligation to treat poor, by
any hospital/doctor-State spends on doctors-etc
5. No ICU-no surgery-SC7 Sept 2017-WB case of 1993-Hysterectomy-patient didn’t come out of GA-needed ICU-multiple transfers. Dr NOT negligent, but 5L awarded as ICU, not within the hospital where surgery was performed..imagine the 1993 situation![Bijoy K Sinha v Dr Biswanath Das)-No negligence, even then compensate! Many more judgments!! (last one by Madras HC on 1.2.2021)
6. RAVINDER SINGH JOLLY V/S DHARAMSHALA CANCER HOSPITAL & RESEARCH CENTRE, Delhi-Do not
negligent. Instead of 35,000, 38400 were charged for stenting in Ca-esophagus. Non-negligent, but
50,000 awarded on sympathy ground 12.1.1026
. 7. Be generous on advising investigations: Delhi Consumer Forum-Jul 2017 Backache lasting more than one month–“A radiological examination could have been done if the patient didn’t get relief in a month”. The forum concluded”… An MRI test was required. Therefore, the doctor has committed medical negligence”.5 lacs
8. Medical Negligence: Most imp judgment 1969 Dr L.B. Joshi v Dr Trimbak Bapu Godbole-1959 SC-it defined 3 duties of a doctor as-Anyone ready to give Rx is supposed to possess necessary skill, knowledge, qualification and registration-1. Decide if he will undertake this case for Rx 2. Decide line of treatment (after diagnosis) 3. To implement decided treatment any breach in any of 3-Actionable
NEGLIGENCE
9. No guarantees and warranties-Supreme Court of India decision in case of CBI, Hyderabad vs K. Narayana Rao on 21 September 2012 https://indiankanoon.org/doc/186107198/ Schaus held professionals cannot be responsible for all that goes wrong-Guarantees and Warrantees are unethical for professionals, especially for medical
. 10. Ashwin Patel v Poonam Verm SC, 1994 forbids cross-pathy and is repeatedly given such decisions-but due to NMC, cross pathy is getting encouraged. (some decisions from SC is needed now in 2021) Later, Mukhtiyar Chand case says, only registered with the medical Council can practice-butters
can be availed by any pathy.
11. Consumer for and Criminal proceedings MUST obtain expert medical opinions about medical
negligence that prima facie case exists. Most imp judgment t help doctors-Dr Martin D’Souza v
Mohm. Ishfaq (SC 2009)—No sensible professional would intentionally commit an act of omission or commission resulting in harm to the patient. Professional is one who professes to have some special skill and he impliedly assures that-(a) he has the skill he professes and (b) he will exercise that skill with reasonable care and caution. Extreme caution while accusing doctors is needed.. Kusum Sharma v Batra SC July 2009 confirmed the same. 12. Jacob Mathews v state of Punjab (SC2005) Very imp judgment for the doctors-No doctor can be arrested unless expert body says there is negligence-and that too only 304A2 (bailable offence) may be applied and that too in exceptional circumstances when medical negligence is of grade 5 or 6, out of 1 to 6.
13. Vicarious liability-Harjyot Sing Ahalluwalla v Spring Medows hospital-SC 1997
Also, it highlighted the importance of taking hospital insurance policy for non-qualified staff! 14. Consent to be valid, specific, informed
and real-Samira Kohli v Prabha Manchanda
SC, 2008-Law on Consent
15. Whether anaesthetist, pathologist, radiologist etc can be implicated though the patient has not gone to
them directly, but only on the advice of treating doctor? YES-Rashmi Fadnvis v Mumbai Grahak Panchayat
(Bombay High Court, 1997)-because such specialists are independent professionals.
16. ROP-retinopathy of Prematurity-No forwarning/poor follow up-usually compensations are
>1.5 Cr(Krishnakumar v TN Govt.-NCDRF, May 2010-and many more)
. 17. Confidentiality-Apollo Hospital Chennai v Dr X—
. Confidentiality: Not Absolute confidentiality and secrecy is NOT an absolute right of doctors-when it comes to danger to human life by non-disclosure, it will not prevail over the immunity under “confidentiality”. Not a privileged communication. (AIDS disclosed to future wife). A doctor is justified in disclosing all papers to the insurer, as it is impliedly consented by the patient claiming reimbursement or cashless benefit. Remember the notifiable diseases-TB, dengue, malaria, cholera, measles, Covid 19, swine flu
.
18 Multiplier method for compensation-highest award of 12 Cr-Sahav Dr Mukharji, SC, 2010 A case
of 51 syndromes.
19. Hospitals share in compensations-Usually it is 60% and 40% for panel consultants-whatever may
be the MOU signed between the 2-MMany judgments 20 Euthanasia-SC Euthanasia SC:2011Aruna R Shanbhagv Union of India-partially overturned by
next judgment, SC Common cause society v Union of India, July 2015-which made living will or
advance directive legal
20. How long to preserve pediatric papers? NCDRC decision in Dr Shakuntala Banale Vs. Anita, 2013-Newborn-discovery rule:
https://lexafy.com/document/18af183432c7a0271877519a3c14bd37 21 Onus of Proof–23-9-2016 National Forum: Onus of proof is on complainant-appeal against 1st appeal 380/2011 dt 8/8/2011 in complaint no 49/2008-PallySrikant vs M/s Krishna Institute
-Hyderabad, AP state commission-The position changes where no free access to patient’s relatives
like OT, ICU, Labor room etc-Reverse presumption in PCPNOT also.
.22. Pathology reporting-who signs? SC In Dec 2017-Gujrat Pvt Lab owners v Gujrat Pathologists Association-SPL MCI 2010-Only RMP under SMC or MCI, having PG qualification in pathology can sign
PGA
or countersign lab reports as argued by MC Acronym of PREVENTION OF ALLEGATIONS
. OPINION
A-ATTENTION; ADDITIONAL
B-BEHAVIOUR, BILLS
C-COMMUNICATION, CONSENT(or denial); COMPASSION; Consent for vaccines too.
D-DOCUMENTS YOUR FRIENDS/FOES!
.
.
. . E-EXPERTISE; EFFICIENCY: EMPATHY Equipment
F&G: Family Doctor & Good Faith as per 5.52 of IPC
I Indemnity of patient & Insurance-Adequately and Continually-50 Lto1 Cr; 1-2 Cr for hospitals/ICUS Adverse media publicity cannot be avoided by and large