Transcript Document

Dr Nikhil Datar
MD DNB FCPS FICOG LLB DGO DHA
Gyneaecologist, Medico-legal Expert &
Health Rights Activist
•Chairman Medico-legal cell Association of Medical
Consultants
•National Coordinator Medico-legal cell FOGSI.
•Head Medico-legal wing Kay Legal Advocates.
 Related

Income tax Act.. Bio medical waste Disposal.. DC
rules
 Related
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


to establishment
to medical profession
Criminal law
Civil / Consumer law
Professional ethics
Human rights
 Specific
laws: MTP, PCPNDT,Organ Donation
 Future Laws: ART Bill, Euthanasia, MTP Act
 Criminal
law, police procedures
 Civil law and procedures
 Law
: Negligence
 Law : Consent
 Laws
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in making :
MTP Act ( Niketa Mehta)
Euthanesia ( Aruna Shanbhag )
tips
Consultant Gynaecologist at Nanawati hospital
Mumbai
 Director : Datar wellness group ( which runs two
nursing homes in western suburbs of Mumbai)
 PG teacher at R N Cooper Municipal Hospital
 Recipient : Commonwealth Fellowship award :
Worked with WHO on patient safety & reducing
medical errors
 Recipient: IFHHRO fellowship American Austrian
foundation
 Fought famous case along with his patient Niketa
Mehta challenging the MTP Act Govt of India
 Medico-legal consultant: Kay Legal Advocates

Nikhil Datar
 Police
( criminal law)
 Advocate ( civil law)
 Medical council ( Professional misconduct)
 Media ( TRP law)
 Ransacking the hospital / assaulting the staff
1.
Can I give a DC? Is PM
mandatory?
2.
Should I inform police?
3.
What to do if I get a “friendly
call” from PM room?
4.
Will the police arrest me?
Dr Nikhil D. Datar
5
What will happen to the
reputation?
6
What will the consumer court
decide?
7
What is my indemnity cover?
Will relatives ransack the hospital?
8
Dr Nikhil D. Datar
 Prevention
of violence
 Damage and loss of property
 Offence
cognizable and non-bailable
 Imprisonment up to 3 years and fine up to
50000 Rs
 Compensation twice the amount of damage
caused
Lord Macaulay (1833)
Actus Non Facit REUM,NIsi Mens Sit Rea
 Offences
against public health (chp XIV)
 Offences against human body
- affecting life (s 299-s 311)
- affecting unborn child (s 312-318)
- hurt (s319-338)
- wrongful restraint (s 339-348)
- sexual offences (s375-377)
 Forgery (s 463)
 Defamation (s499-500)
 Fraudulent use of weights (chp XIII)
Dr Nikhil D. Datar


Lawful homicide
Unlawful homicide
- Culpable homicide (s 299)
- Murder
Can a doctor be charged for culpable homicide ?
Mahadev Prasad Kaushik Vs State of UP (SC)
- Rash & Negligent Act
(S 304 A)
Dr Nikhil D. Datar
Dr Nikhil D. Datar
If he knows the cause of
death
And
not otherwise
Dr Nikhil D. Datar
When
cause of death is not
known
When
cause of death is known
but………….
Dr Nikhil D. Datar
Death
linked with abortion
Death
on operation table or post
op 24 hours
Death
related to medical
procedure
Dr Nikhil D. Datar
 Death
related to accidents or violence
 All
deaths related to tubal sterilizations (PM
mandatory)
 When
there is allegation of medical mismanagement
(source:J.K.Mason .Edition III)
Dr Nikhil D. Datar
This
is a wrong equation
Dr Nikhil D. Datar
Informing
the police
“Panchnama”
Handing
over the papers
Dr Nikhil D. Datar
PM
report
Opinion

of police surgeon
FIR
Arrest
Dr Nikhil D. Datar
It is a cognizable and bailable offence
Dr Nikhil D. Datar
 Surgery
without consent
 Surgery on wrong patient or wrong organ
 Leaving mop or instrument inside
 Transfusing wrong blood
 Performing criminal abortion
(source:Medical Negligence & Compensation Edition II)
Dr Nikhil D. Datar

1.
2.
3.
4.
5.
6.
Before surgery
Check the consent
Confirm the identity of patient and
nature of surgery
Use the Checklist as a matter of
“ritual”
Check the expiry of drugs (S 273-276)
Insist that the anaesthetist talks and
examines the patient before starting
Use the “life saver board”
Dr Nikhil D. Datar
Dr Nikhil D. Datar
“Presumption
of
innocence”
Burden of proof
Degree of
evidence
Prosecution has to
prove the need of
penal remedy.
Dr Nikhil D. Datar
•Police ( criminal law)
•Notice of advocate ( civil law)
•Notice from medical council ( medical council)
•Media ( TRP law)
 Complaint
 Written
statement
 Rejoinder
 Sur rejoinder
 Laws
and rules
 Text books
 Expert Evidence
 Guidelines from professional bodies
Nikhil Datar
Nikhil Datar
 Consent
 Negligence
Violation of
“Right in Rem”

Duty imposed by
law
 Duty independent
of consent




Violation of
“Right in
Personum”
Duty imposed by
terms of contract
Consent
important
Dr Nikhil Datar
Damages
unliquidated
Limitation
: from
the date when
damage is
suffered
Damages
well
defined
Limitation:
from
the date of
breach of contract
Dr Nikhil Datar
Law of torts

Competent to consent

Capacity to consent
Dr Nikhil Datar
 False
Imprisonment
 Assault & Battery
 Mayhem
1.
2.
3.
4.
5.
Dr Nikhil Datar
Fraud
Misrepresentation
Undue influence
Non voluntary
Not an “ informed
consent”
 Samira
Kohli Vs Dr Prabha Manchanda (SC)
 Capacity
& competency to consent
 Voluntary
 On the basis of adequate information
 Nature
& procedure, its purpose, benefits
and effects
 Alternatives available
 Outline of substantial risks ( 10%)
 No need to explain remote risks ( 1-2%)
 Consequences of refusing the prescribed
treatment
 Boalm’s
test shall prevail
 Consent
for diagnostic procedure can’t be
considered valid for therapeutic procedure
even if there is physical or financial benefit
 The exception to the above rule is “ life
saving conditions”
 Comprehensive consent can be taken before
hand
 Breech
of duty
 Doing or not doing some thing which a
reasonable and prudent man would
not do or do.
Legal
Duty
duty must exist
can be independent of contract
Damage
should be caused (causa
causans)
Act
must be below the “Standard of
reasonable care”
Dr Nikhil Datar
 Boalm
Vs Frien Health authority
“A man need not possess the highest expert skill;
it is well established law that it is sufficient if he
exercises the ordinary skill of an ordinarily
competent man exercising that particular art."
(Charlesworth & Percy, ibid, Para 8.02)
 Criminal
negligence
 Civil negligence
 Mistake
 Error
 Misfortune/ “Act of God”
 Jacob
Mathew Vs State of Punjab
 Degree
of damage Vs degree of negligence
 Mens rea ( reckless state of mind though not
intention to cause harm) for criminal
negligence
 Conviction beyond doubt Vs Preponderance
of probability
 Section 304 A to be read should be read as
qualified by the word “ gross”
 Lord Diplock in R Vs Lawrence: “Rashness of
such a degree that injury was most likely
imminent”
Government to form rules and guidelines
 The IO.. obtain an independent and competent
medical opinion preferably from a doctor in
government service qualified in that branch of
medical practice after applying Bolam's test.
 A doctor accused of rashness or negligence, may
not be arrested in a routine manner (simply
because a charge has been leveled against him).
Unless his arrest is necessary.

Are doctors capable of handling this?
 Jacob
Mathew vs State of Punjab
 Martin D souza vs Mohd Isfaq
 V krishnarao vs Nikhil super speciality
Hospital
MTP Act: Dr Nikhil Datar VS Govt of India
Euthanesia: Pinky Virani Vs Govt of India
•
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My patient Niketa Haresh Mehta
24 weeks pregnant.. Found two major heart
anomalies of the fetus.. Opinions of 6
reputed doctors ( cardiologists and
pediatricians)… “substandard quality of life
and mortality”
Patient wanted termination of pregnancy.
I refused “Illegal termination” and patient
refused to change the doctor thus I became
the principal petitioner and invoked the writ
jurisdiction
Section3 (2) (b) :
-There is substantial risk that if the child were
born, it would suffer from such physical or
mental abnormalities as to be seriously
handicapped.
-The continuance of the pregnancy would
involve a risk to the life of the pregnant woman
or of grave injury to her physical or mental
health
(This section allows the termination only till 20
weeks of pregnancy.)
Beyond 20 weeks, termination is allowed :
if immediately necessary to save the life of the
pregnant woman.
 The
word “substantial risk” is very vague ...
it is open to different interpretation by
courts of law and may lead to endless
trouble for doctor concerned. Efforts should
have been made to better define the risks.
 --- Dr H N Shivpuri (1967)
•
•
•
•
Significant improvement in diagnostics as
compared to therapeutics.
The doctors can only give the statistical
prognosis but not individualistic prognosis.
Late termination has medically became very
safe.
Every case will be different and decisions
intensely personal based on the values,
beliefs of the person.
 When
does the life begin?
 How to choose between sanctity & quality of
life?
 How to determine the “best interest” of the
foetus who can’t speak or can’t be even
examined?
 How does one see this in the light of poor
country & self funded health care?
The Nuffield Council on Bioethics is
funded jointly by the Medical Research
Council, the Nuffield Foundation
and the Wellcome Trust.
Health economist, disability commissioner,
anthropologist,
Reputed doctors from fields of Obstetrics,
neonatology,
Lawyers, ethicist, Rights activists.
 We
regard the moment of birth, which is
straightforward to identify, and usually
represents a significant threshold in potential
viability, as the significant moral and legal
point of transition for judgements about
preserving life.
--- Working party
 When
the baby’s life results in a level of
irremediable suffering , there is no ethical
obligation to act in order to preserve
that life.
- Working party
It is immoral that the pregnant woman acts
wrongly in harming her future child by
acting neglectfully or in a manner that is
wilfully harmful, as happens occasionally,
It would be wrong to force a woman to
behave rightly by submitting to medical
or surgical interventions to
benefit a foetus against her will.
 It
is in the “ best interest “ of the fetus to
survive or not, to avoid “ intolerable life”
and best quality of life.
 It is reasonable to consider parents interests
socio economic issues as well.
•
FIGO Committee for The Study of Ethical Aspects of
Human Reproduction and Women’s Health
“The Committee agreed that a woman carrying a
severely malformed fetus had the ethical right to
have her pregnancy terminated.
The qualification ‘severe’ is used in this context to
indicate
malformations that are either potentially lethal or
whose nature is
such that even with medical treatment they are likely,
in the view of
the parents and their medical advisors, to result in
unacceptable
mental and/or physical disability.”
 Hon’ble
Bombay High court refused the
permission.
 I am in appeal at the SC.
 Union Health minister appointed a
committee.
 Facts
of the case
 Court recorded the reasons for going into the
issue though it was not amounting to
violation of fundamental rights
 No to active euthanesia
 Yes to passive euthanasia provided:



next keen approaches
Doctors panel approves
Two judge panel of the HC allows
legal validity of “ Do not resuscitate”
 Leaving will

As it is , humans are imperfect.
Law and medicine, both deal with human
beings & are imperfect sciences. The set of
another human beings ( doctors & judges)
administer these imperfect sciences.
Thus it is perfect that law related to
medicine will be more imperfect and
admixed with complex issues.
Nikhil Datar