Transcript MEDICO LEGAL ISSUES - Srijithnair's Weblog

MEDICO LEGAL ISSUES
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Dr must do his duty in good faith,for benefit
of the patient & with consent.
Good
Faith
refers
to
act
with
due
competence,due care & due caution.
Competence The act done with possession of
knowledge & skill for the intervention being
done.
Due Care Timely fulfillment of medical needs
of the person.
Caution Anything done without caution will be
rash.
To
anticipate,
prevent
adverse
consequence
&
deal
with
adverse
consequences.
Benefit It may be Physical,Physiological or
functional
CONSENT
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Consent is defined as agreement in
sentiment,opinion,a course of action etc.
Law recognizes consent as good defence for
causing injury which is based on the
percept that every individual knows what is
best for oneself.
Law cannot provide immunity against all
types of criminal offences.
Offences
can
be
there
completely
independent of consent.
Consent can be either implied or expressed
which can again be oral or written.
CONSENT
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Consent should be patient’s own & he
should be legally & mentally competent. No
one-else is competent.
Free consent:- Means consent must be free
from force,coercion,fraud, & inducement.
Informed consent:-It must state who is
consenting to whom & for what purpose &
should be given having understood nature
& consequences of the act.It could be orally
expressed One has to be told about
possible basic risks, likely benefits &
alternatives available, irrespective of his
education standard,in the language the
patient understand.
Consent must be recorded.
CONSENT
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Implied Consent:- Consent need not
be expressed or articulated.
It includes consent by acts,conduct &
consent presumed but never given.
It is permitted in special circumstances
like when patient is not competent by
age, physical or mental condition, when
guardian is not available& patient’s
condition is life threatening( To prevent
death or grievous hurt.
Surrogate consent :-Any body who is
in valid custody of the individual is
permitted to give consent
CRIMINAL CULPABILITY &
CONSENT
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Sec. 87IPC states that nothing is an
offence if done, not intending or
knowing by the doer that it would cause
death, or grievous hurt, by the harm
that may cause, if this is done with the
consent of the person who got
injured,the
later
being
above
18yrs.,whether expressed or implied to
suffer that harm.
Age of consent especially to risk harm,is
18 yrs which is the age of majority
under Indian majority Act 1875.
Consent for medical examination can be
given by any person above 12 Yrs.
Sec88IPC- Nothing which is not intended to
cause death is an offence by reason of any
harm it may cause-a) or intended by the doer
to cause
b)or known by the doer to be likely to cause to
any person for whose benefit it is done in
good faith
c) and who has given either implied or
expressed consent to suffer that harm or take
risk of that harm.
Sec.89IPC states that nothing ,which is done
in good faith for benefit of a child under 12
yrs.or insane shall be an offence if with
consent either express or implied of guardian
or other person having lawful charge of that
person ,is an offence.
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Sec90 of IPC clarifies consent given under
fear, misconception,or by an insane
person or a child below 12 yrs is no
consent.
Sec91 clarifies that any act which is an
offence by itself, independent of harm it
may cause does not have any protection
u/s 87,88&89IPC because consent was
given by the sufferer.
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Sec.92 covers acts done in good faith for
the benefit of a person,without his
consent not being an offence,if;
-it was impossible for the person to show
his consent,or
-he was incapable of giving consent,or
-no guardian or other person having
lawful charge of him was available in time
to consent.
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Criminal culpability: Sec82 of IPC
gives total immunity from criminal
culpability to a child below 7yrs.
While under section 83, a child
between 7 & 12 yrs has a limited
culpability.
MEDICAL NEGLIGENCE
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Failure to follow the medical norms is
negligence.
Norms are case specific,situation specific
& context specific.
To prove negligence four (4D’s)a) Duty to care
b)
Deficiency in duty
c)
Damage occurred to patient
d)Damage should be direct consequence
of the act
DEATH CERTIFICATE
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i.
ii.
iii.
It should not be issued in following
circumstances:when cause is uncertain
when foul play is suspected
un-natural deaths.
Defence of Doctor in Tort
cases
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The concept of medical negligence in
causation of injury has been 4000yrs
old.First recorded malpractice suit in
English law was in 1615 Evered VsHopkins
In tort cases defence of Drs:-No contract
between
Dr
&
patient,Contributory
negligence on the part of patient( but not
considered in criminal negligence charges
u/s338/304 but is a valid defence for tort
cases),No injury resulting from that care
as per the knowledge & experience
available till date, no demonstrable link
between the standard of care & the injury,
informed consent when complications were
explained,no guarantee for cure.
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Vicarious responsibility:-It is the
responsibility fixed on another in place of
the original person. A medical offr can be
held responsible for any charge of
negligence for his subordinates,unless
other person is qualified or experience
enough to do a task.A senior offr in Admn
cannot be held responsible for tasks of his
junior officer,independently competent to
do
so,&
recruited/selected
for
undertaking such tasks unless repeatedly
brought to notice of superior then senior
may be held vicariously responsible for
his junior’s acts of negligence.
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Respondens Superiors:-This is the
defence resident Drs/interns.
Novus Actus Interveniens:- Act of
God/un-foreseen/unreported
turn
of
events. Since the event was not expected
to happen hence one could not take
adequate preventive measures.
Therapeutic
Misadventure:the
outcome of any medical Mgt. cannot be
guaranteed,
he
cannot
be
held
responsible as medicine is not an exact
computable science.
PRIVILEGED
COMMUNICATION
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Ordinarily
any
communication
between the patient & his Dr. is
governed by the Geneva code of
ethics & the Hippocratic oath as not
to divulged to any other person
including the person’s own spouse or
parents without his/her consent;
unless the interests of community as
whole or in major part at stake.