Medical Care Medical Practice Legal Aspects Health Care Law

1. LEGAL ASPECTS
OF Medical Care
Prof. Syed Amin Tabish
FRCP (London), FRCP (Edin.), FAMS, MD (AIIMS)
Postdoc Fellowship, Bristol University (England)
Doctorate in Educational Leadership (USA)

2. Legal Aspects of Medical
Practice
• With knowledge explosion and
technological advances mainly
aimed to provide high quality
medical care to individual
patients, the need for a careful
construction of a professional
ethics is urgent.
• Citizen’s charter on Health
Services
• Consumer Protection Act

3. Why Ethics
•Patients are
increasingly aware of
what they believe to be
their human rights &
expect doctors to
respect them

4. The Duties of Clinical Care
Rights of patients may be
summarized by 3
corresponding duties of
care which apply to all
patients:
- Protect life & health
- Respect Autonomy
- Fairness & justice

5. 1. The Duties of Clinical care
• Protect Life & Health
(clinicians to practice
medicine to high standard
not to cause unnecessary
harm/suffering

6. 2. The Duties of Clinical Care
Respect Autonomy:
• Humans have autonomy – the
ability to reason, plan and make
choices about the future
• Doctors are required to respect
these attributes (respect for the
dignity):
- informed consent
- confidentiality (per info)
Denying pts. Such choice & control
robs them of their human dignity

7. 3. Fairness & justice
• The access to & quality of clinical care
should be need-based rather than
favoritism
• Injustice can occur through treating
patients unequally according to:
- socioeconomic status
- physical attraction
- profession
- age
- race
Equal Access to appropriate care
according to NEED

8. Why should Doctors take these
duties seriously?
• Professional regulation (Medical
Council)
• The Law (duties are also enshrined
in the constitution/statue/common
law)
- Doctors may be sued in Civil
Law for financial compensation for
any harm (failure in professional
duty)
- If this harm is intentional:
Criminal Law will apply

9. Why should Doctors take these
duties seriously?
• Rational Self-interest: support
the right of all patients to high
standard of care
• The clinical importance of trust:
lack of trust will spoil the quality
of pt. care & professional life
• The Doctor-Patient Relationship:
treat pts. as active partners in
healing process; Problem-solving
is by doctors; Decision-making is
by both (Doctor & Patient)

10. Medical Mistakes
Clinical Negligence
• Patient must provide
evidence to the Court that:
- they were harmed
- the harm was caused by
the accused doctor
- the action that causes the
harm was a breach of
professional duty

11. Challenges
• Consent
• Medical negligence
• Medical reports
• Certificates
• Sexual offenses
• Confidentiality
• Terminal illness
• Withdrawing of life-support

12. Ethics is everyone’s responsibility
• The relationship of patient to
his physician is by its very
nature one of the most
intimate
• Foundation: doctor is learned,
skilled & experienced in
afflictions of body about which
patient ordinarily knows little
(but are very imp for him)

13. Ethics is everyone’s
responsibility
• Patient must place great
reliance, faith & confidence in
the professional
word/advice/acts of doctor
• Doctor must act with utmost
good faith & to speak fairly &
truthfully to the peril of being
held liable for damages for deceit
or fraud

14. Fundamental Right
• No person shall be deprived of
his life (life with human
dignity)
• Emergency care is right of
every citizen
• When a person who is innocent
or criminal has met with an
accident, it is the obligation of
health providers to protect his
life

15. Emergency Doctrine
• In Emergencies, CONSENT can be
implied in the law if immediate
treatment is necessary to avoid
life- or limb-threatening
condition
• Clinical management should
precede the legal duties in
trauma cases brought for
treatment

16. Medical Negligence
• A doctor must posses a
reasonable degree of
proficiency & apply the
proficiency with a reasonable
degree of diligence
• Failure of the doctor to provide
medical services (with requisite
skill & care) gives rise to action
in medical negligence under
criminal, civil or consumer court

17. Medical Negligence
• A doctor is negligent if he
doesn't offer his services in
an emergency situation
• A doctor breaches his duty of
care when he fails to reach
the standard of proficiency
expected of him

18. Legal concept of Negligence
• Human Behaviour towards
others: failure to act reasonably
& prudently
• Failure or breach of duty owed to
the patient doctor has the
obligation to perform that duty in
a manner that will bring it to a
successful conclusion)
• Damage to the individual for
breach of duty (there must be some
damage to the patient resulting from breach
of duty owed)

19. Medical malpractice
• The plaintiff must prove that the
treatment given was below the
degree and skill expected of a
competent doctor and that the
negligence proximately caused
the injury or death……….. The
bare possibility of causation will
not suffice

20. TORT
• Civil wrong (negligence) committed
by one individual against another is
known as TORT, where, a person fails
to take proper care, so that damage
results
• Civil Law deals with legal actions
which seek the redress of wrongs
which are not criminal in nature
• Criminal Law involves a legal action
filed by a state government against
defendants and deals with definitions
of crimes and their punishment

21. Negligence
• Harmful conduct that deviates
from accepted standards of duty
& care
• A doctor who injures a patient by
conduct that fails to meet the
legal standard of due care may
be liable for negligence in an
action for malpractice

22. Specific elements of Negligence
In order for a complaining party to
sustain an action for negligence against
a defending party, 4 elements must be
proved in the court of law:
• Existence of doctor-patient relationship
giving rise to a duty of due care
• Breach of that duty
• Proximate cause (injury): Fall from a
Stretcher in ED sustains bruises/MI after 4 months;
is unlikely to rove that the fall caused MI
• Damages

23. Res Ipsa Loquitur
• In most malpractice cases, the
plaintiff is required to prove
negligence through the testimony of
an expert medical witness
• An exception: doctrine of res ipsa
loquitur (the thing speaks for itself):
when medical mishap could not be
due to someone’s negligence
(presence of a sponge or clamp in the
body cavity of a patient who has had
surgery is a self-evident indication of
negligent conduct by some member of
the operating team)

24. Error of Clinical Judgment
• Some mishaps are unavoidable,
being within the wide range of
variability and uncertainty that is
inherent in biological processes
• Common causes for negligent
actions include failure to attend,
amputation of wrong limb or
digit, missed fractures,, tight
plaster casts, poor results from
spinal procedures, damage to
newborn from anoxia or forceps

25. Error of clinical judgment - II
• Removal of healthy kidney
instead of pathological
• Operation on healthy eye
• Leaving gauze or instrument in
the body cavity during surgery
• Anesthetic errors
• Not performing sensitivity tests
for certain drugs before
administering
• Failed tubal sterilization

26. Malpractice
• Professional negligence
• Lack of reasonable care &
skill
• Willful negligence in the
treatment of a patient
whereby the health or life of
a patient is endangered

27. Criminal Negligence
• Negligence is so great as to go
beyond matter of mere
compensation
• Not only the doctor has made
wrong diagnosis and treatment,
but he/she has shown gross
neglect for life and safety of the
patient
• Doctor may be prosecuted for
having caused injury or death of a
patient by a rash & negligent act
amounting to culpable homicide

28. CONSENT
• One of the most basic human rights
is freedom from physical interference
• A person of sufficient maturity and
mental capacity can choose whether
to submit to the ministrations of a
doctor
• With few exceptions, consent to
examination is an absolute
prerequisite before a doctor
approaches the patient
• Failure to obtain consent may lead to
recovery of damages in a civil action

29. Battery
•Battery: an unpermitted
contact with the patient
•A clinician who fails to
obtain consent for
treatment or who provides
treatment beyond or
contrary to what the patient
has consented to

30. Types of Consent
• Implied Consent: is provided by the
behaviour of the patient; e.g. patient
presents at Outpatient Clinic
• Express Consent: Any thing other
than implied consent. It may be oral
or written
• Informed Consent: consent must be
obtained after a reasonable
explanation of the proposed
procedure to patient, so that he is
enable to make informed decision
whether or not to submit

31. The Extension Doctrine
• Provides an exception to the general
rule that a patient’s consent is limited
to those procedures contemplated
when consent is given
• If in the course of authorized medical
intervention a doctor discovers a life-
threatening condition that requires
immediate treatment and the patient
is unable to consent (e.g. under
anesthesia), the doctor may extend
the operation or procedure without
the patient’s express consent

32. Therapeutic privilege
• A situation where full disclosure to the
patient might be harmful and therefore
contraindicated, a doctor may have a
therapeutic privilege to withhold
information
• This privilege avails only when the
patient’s distress and apprehension are
so great that full disclosure of all risks
might cause emotional harm or induce
the patient to refuse treatment, fail to
cooperate with treatment, or make an
irrational choice of treatment
alternatives
• Used in rare circumstances only

33. Medical reports & certificates
• Reports on the medical conditions
of a person (victim or
accused)folowing injury
• Death certificate
• Reports for Life-insurance
• Certificate of illness
• Certificate of fitness
• All these documents must be
prepared with meticulous accuracy

34. Sexual Assault (Rape)
• Rape is a legal conclusion and not
a medical diagnosis
• The medical diagnosis of a rape
victim should be limited to the
actual clinical findings at the time
of examination
• If MoH trust female Gynecologist
fail to reach the fact definitely, or if
circumstances so demand, take the
judge permission to have the
victim examined by male forensic
doctor

35. Medical Exam. of a female
The medical examination by a
Gynecologist or Forensic
Doctor of a woman subjected
to sexual assault shall be
done in presence of:
• guardian
• female general practitioner
• nurse

36. Report
Incidents requiring a report to
the proper official relevant
agencies while maintaining as
much patient confidentiality as
possible, include:
• Drug & chemical poisoning
• Road traffic accident
• Gun-shot wounds
• Physical assault

37. Gunshot & Stab Wounds
•Reports of these acts of
violence are usually made
to police

38. Dead-on-Arrival
• If the case of death is natural, death
certificate & burying license must be
submitted to relatives
• Un-natural death: be reported to police
for possible investigation & for
assessment of need for a referral to
forensic medicine sp.
• Initiate resuscitation unless it is clear
that patient has been dead for some
time
• Mention that deceased was brought
dead
• Body to be examined by a committee
• In case there is no clear cause of death,
take 50 ml blood in plain tube & send to
Toxicology Centre

39. Cause of Death
• In case the results (from
toxicology lab) are negative, the
cause of death can be mentioned
as “Death possible due to hidden
disease leading to
cardiopulmonary arrest”
• All dead bodies should be kept
for 2 hours before transferring to
mortuary
• Patient’s belongings should be
handed over to relatives, if the
cause of death is natural.

40. Medico-legal cases
• A case or injury or ailment
where an attending doctor after
taking history & clinical
examination of the patient,
thinks that some investigation
by law-enforcing agencies are
essential so as to fix
responsibility regarding the case
in accordance with the law of
the land

41. Medico-legal cases
• Motor vehicle accidents (RTAs)
• Factory/industry accidents
• Suspected homicide, suicide
• Poisoning
• Burn injuries
• Injury where foul play is suspected
• Sexual offenses
• Unconscious cases where cause is not
known
• Cases brought dead with improper
history
• Cases referred by Court

42. MLC Injury Report
• Must be prepared on the appropriate form
• Should be written in a neat and legible
handwriting by the examining doctor
• Report should be completed as early as
possible after examining the person
• Time of examination along with date
• Where nature of injury cannot be
ascertained, patient must be kept under
observation and admitted in ward
• General physical examination should
always be undertaken & findings recorded
• Opinion will depend on X-ray & other
reports

43. Preservation of trace evidence
• All clothing worn by an
injured and removed in the
hospital shall be preserved,
packed after drying
• Gastric lavage, bullet pellets
etc. taken out of the body of
a patient be preserved in
sealed containers & labeled
properly, preserved under
safe custody

44. Doctor’s Defence
• When something untoward
happens following a diagnostic or
therapeutic procedure, the doctor
must take following step/s:
– complete the patient’s record & recheck
the written notes
– be frank enough and inform clearly of the
mishap and show genuine concern about
the unfortunate mishap
– contact professional bodies to seek advice
– professional indemnity insurance cover