DUTIES, CONSENT, NEGLIGENCE.ppt

DUTIES OF MEDICAL
PRACTITIONER
• Duties of Medical Practitioners Towards Patient
• 1. Duty to exercise a reasonable degree of skill and
knowledge.
• 2. Duties with regard to attendance and
examination:
• 3. Duty to furnish proper and suitable
medicines:
• 4. Duty to give instruction:
• 5. Duty to control and warn:
• 6. Duty to third party:

DUTIES OF MEDICAL
PRACTITIONER
7. Duty towards children and adults incapable of
taking care of themselves:
8. Duty to inform patient of risks:
9. Duty with regard to poison:
10. Duties in connection with administration of
anesthetic agents:
11. Duty in connection with X-ray examination.
12. Duty to maintain secrecy:

DUTIES OF MEDICAL
PRACTITIONER
13. Duties with regards to operation:
14. Duty with regards to take
consent:
Duties of Medical Practitioners Towards Professional
Colleague.
15

Duties of Medical Practitioners Towards Professional
Colleague.
15. Not to criticize colleague
16. Never take fees
17. Duties with regard to consultation
18. Duty to notify certain diseases

Duty of care
• Duty of care arises simply by examining
someone for signs of illness or trauma
or even accepting a patient on to a list
of existing patients. As soon as a doctor
gives advice and counseling over
telephone, a legal duty to the patient
arises.

A DOCTOR CAN DISCONTINUE
THE TREATMENT:
• a. When the doctor patient relationship is
terminated by notice from either side (When
the pt. wants to change the doctor).
• b. When another doctor has been consulted
without the knowledge of the first doctor.
• c. When remedies other than those
prescribed by the doctor are being used.

A DOCTOR CAN DISCONTINUE
THE TREATMENT:
• d. When the advice of the doctor is not properly
followed.
• e. When the doctor is not paid his due fees for
attending the patient.
• f. When the doctor himself has fallen sick.
• g. When the doctor understand that the patient is
malingering.

Duties under Geneva
Conventions
• In Geneva, in 1949, four conventions were
agreed :
• 1. Wounded or sick armed forces
• 2.Ship-wrecked persons
• 3.Prisoners of war
• 4. Civilians of enemy nationality
• Are to be treated without any adverse
distinction based on sex,
race,nationality,political opinions.

Duties with Regard to
Consultation:
• Consultation should be done following
circumstances :
• 1. When an operation or treatment involving danger to life.
• 2. When an operation affecting generative functions
• 3. When an operation is to be performed on a patient who
received serious injuries in a criminal assault.
• 4. When an operation of mutilating or destructive nature to be
performed on an unborn child.
• 5. When a therapeutic abortion is to be procured.
• 6. When a women on whom criminal abortion has already been
performed.

PRIVILEGED
COMMUNICATION
• It may be defined as a bonafied
information to a concerned person or
authority given by a doctor to protect the
interest of the community or the public
towards whom he has a legal, social or
moral duty; although such
communication under normal condition
contravenes the general rules of
professional secrecy.

The following are the examples of
privileged communication:
• 1. Information about Infectious disease:-
When a person suffering from or is a carrier of
some infectious disease which is known to
contaminate through food and drink, is
employed in a hotel to prepare food or serve
food to the customers, then his doctor should
first advise him to abstain from working till he
is free from the disease.

• If he does not listen to the advice of the
doctor then the doctor should inform the
employer about the danger from the particular
employee.

• 2. Information about non-infectious
disease of some specific categories of
employees:-
• Person suffering from defective colour
vision, if he engaged in jobs like driving.

• 3. Information about the risk of
contamination to public in general
with infectious disease:-
When a person suffering from a
contagious disease takes birth in a
public bath like a bathing pool,

• 4. Information about a patient suffering
from sexually transmitted disease:-
• When a doctor finds that one of his
patients, who is suffering from sexually
transmitted disease is planning to
marry, he should first advice the patient
not to marry until he is cured of his
disease.

• If the patient does not listen to the
advice of the doctor than the doctor can
inform the person about his illness,
whom the patient going to marry.

The following are the examples of
privileged communication:
• 1. Information about Infectious disease:-
• 2. Information about non-infectious disease
of some specific categories of employees:-
• 3. Information about the risk of
contamination to public in general with
infectious disease:-
• 4. Information about a patient suffering from
sexually transmitted disease:-

Privileged
communication:
• 5. Information about the outbreak of a
communicable disease:-
• 6. Information about commission of some
crime:-
• 7. Information disclosed in the interest of
the patient:-
• 8. Disclosure in the interest of the doctor
himself:-
• 9. Disclosure in a court of law:-

• 9. Disclosure in a court of law:-
• Though a doctor is not ordinarily
expected to divulge any secret
information about his patient which he
learns in course of treating the patient,
in a Court of Law he does not exercise
the privilege of professional secrecy,

• As a lawyer does. Whatever information
is required by the court, for the interest
of justice, the doctor is legally bound to
narrate the same before the court as
per knowledge.

RIGHTS AND PRIVILEGES
ENJOYED BY A REGISTERED
MEDICAL PRACTITIONER
• 1. Right to choose his patient.
• 2. Right to practice medicine.
• 3. Right to dispense medicine.
• 4. Right to posses and supply dangerous
drugs to his patients.

• 5. Right to use title and description of the
qualification which he actually possess.
• 6. Right to realize fee and other expenses for
attending his patient
• 7. Right for appointment in public and local
hospital.
• 8. Right to issue medical certificates and
medico legal reports.

• 9. Right to give evidence in a court of law as
an expert witness.
• 10. Right to be exempted from acting as a
juror in course of holding an inquest.
• 11. Removal of organs from a dead body for
transplantation purposes.
• 12. Right to use the Red Cross emblem.

CONSENT
• Definition: Consent means voluntary
agreement, approval or permission for
compliance of some act.
Consent is valid only it is given after
knowing the nature and consequences
of the consent and those of the act for
which consent is given.

Types of Consent
• Consent
Implied Expressed or
Informed
Verbal Written

IMPLIED CONSENT:
• When the conduct of a
person is very much
indicative that he is
agreeable to some act,
or he desire that the act
to be done, then it is
implied that he has
given consent for the
act, even though he has
not expressed his
consent in words or in
letters.

Informed consent:
• When consent has
been given after
knowing all the pros
and cons of the act for
which consent has been
given. (i.e., the nature
and quality of the act,
the risk involved in it,
whether he has any
other choice for the act
in question) it is termed
as Informed Consent.

Informed consent implies an
understanding by the patient of.
• 1. The nature of his condition.
• 2. The nature of the proposed treatment
or procedure.
• 3. The alternative procedure.
• 4. The risk and benefits involved in the
proposed and alternative procedure.

• 5. The potential risk of not receiving
treatment.
• 6. The relative chances of success or
failure of both procedures, so that he may
accept and reject either of the procedure.

RULES OF CONSENT:
• 1. A consent given by a person under fear
of injury, or due to misunderstanding of a
fact is not valid.
• 2. The consent given by an insane or
intoxicated person, who is unable to
understand the nature and consequences of
that to which he gives his consent is invalid.
• 3. Consent given for committing a crime or
an illegal act such as criminal abortion is
invalid.

RULES OF CONSENT:
• 4. A child under 12 years of age and
an insane person cannot give valid
consent to suffer any harm which may
result from an act done in good faith
and for its benefit.
• 5. Oral consent should be obtained in
the presence of disinterested third
party i.e. nurse.

RULES OF CONSENT:
• 6. The consent should be free, voluntary,
clear, intelligent, informed, direct and
personal. There should be no undue
influence, fraud misrepresentation of facts,
compulsion, and threat of physical injury,
death or other consequences.
• 7. For the greater interest of the community
a person may be subjected to forceful
treatment without his consent, when there is
a danger of spreading the disease.

Circumstances where consent of the
patient is necessary in medical
practice:
1. Consent is required in all cases of medical
examination and treatment.
2. When the method of treatment or
investigation extends beyond usual
procedure and involves risk.
3. Written informed consent should be taken
before examining a person with the purpose
to prepare a m/l report.

practice:
4. While examining a victim of a criminal case
(victim of rape, assault etc)
5. Ordinarily, consent should be sought for
examination of an accused person.
6. Except in circumstances of privileged
communication, the secret information
about the patient should not be disclosed,
without his consent.

practice:
7. For the purpose of treatment of either
the husband or the wife, consent of the
person to be treated is necessary and
no consent from the other spouse is
necessary.

• Substituted consent : If a
person in need of treatment is incapable
of giving informed consent,
consent(proxy consent) must be
obtained from next of kin. The order of
succession is generally spouse, adult
child, parent and sibling.

Blanket(open)consent : The
consent practiced in most hospitals
that cover almost everything a doctor
might do to a patient without
mentioning anything specific.
It is of questionable legal validity.

Informed Refusal
• The physician has a duty to disclose
adequately and appropriately to the
patient, the risk or possible
consequences of refusal to undergo a
test or treatment. After understanding all
the facts, the patient can refuse to
submit to treatment or an operation.

The informed refusal should be recorded
in writing which also may be helpful for
the doctor if he is later charged for
negligence for not doing the needful for
the cure of the patient.

Malpractice or
Malpraxis
• Malpractice or Malpraxis may be
defined as absence of reasonable care
and skill in a doctor in course of treating
his patient or his willful negligence in the
treatment of a patient, causing some
damage, bodily injury or death of the
patient.

• Malpractice can be
conveniently divided into two
broad types:
• Medical Negligence - Where the
standard of medical care given to a
patient is considered to be inadequate.
• Professional misconduct- Where the
personal, professional behavior falls
below that which is expected of a
doctor.
• Ref :Simpson’s Forensic Medicine – 12th ed.2003;15.

• Malpractice or Malpraxis
Medical Professional
negligence misconduct
Civil Criminal
Negligence Negligence

Types of Medical
Negligence:
• Civil Negligence.
• Criminal
Negligence.

Civil Negligence
• Civil negligence indicates such act of
negligence. On the part of the treating
physician which causes some suffering,
harm or damage to the patient which can
be compensated by paying money and
which does not come under the purview of
the Criminal Procedure Code (Cr.P.C) and
Bangladesh Penal Code (BPC) and does
not demand legal punishment of the
doctor.

Criminal negligence:
• Criminal negligence indicate such act of
negligence on the part of the treating
physician which causes irreversible bodily
harm or death of the patient, and which
results from gross carelessness and unskillful
ness of the doctor which can not be
compensated by paying money and the erring
doctor is liable to be punished as per Criminal
Procedure Code (Cr.P.C.) and Bangladesh
Penal Code (BPC).

• Medical negligence may be
committed in the following
ways:
• 1. Nonfeasance --- act of
omission.
• 2. Misfeasance --- act of
• 3. Malfeasance --- commission

NONFEASANCE:
• Omission of an obligatory act when
something has to be done by the
doctor but the erring doctor fails to
do it.
• Examples:(1) A wounded person has to be
immunized by tetanus toxoid, but the doctor
did not do it.
• (11) X-ray should be taken in
bony injury to diagnose fracture or
dislocation, but the doctor fail to do it.
• (111) X-ray should be taken in
head injury whether any skull fracture or
intracranial hemorrhage. But doctor fails to
do it.

MALFEASANCE
• To do a bad thing, when something
should not have to be done but the
doctor did it.
• Examples:(1) knowing the patient a peptic
ulcer, administering aspirin or NSAID, which
lead to perforation of peptic ulcer.
• (11) A patient of 60 yrs having enlarged
prostate or glaucoma if a doctor prescribed
anticholinergics, which will cause urinary
retention, or aggravating glaucoma.

MISFEASANCE
• Doing of a lawful act in a wrongful
manner. In other wards a right
thing is done in a wrong way.
• Example : (i) Wrong bottle of blood has been
transfused Which may cause death.
• ii) Indication of amputation right leg but
the surgeon amputed left one.
• (iii) A patient has severe pain to the 2nd
molar tooth but the dentists extracted the 1st one.

The burden of proof of negligence
of the doctor lays on the plaintiff
i, e, the complainant.
• To proof negligence on the part of
the doctor the following ingredients
must be present,
• Duty.
• Dereliction.
• Direct causation. 4 D’s
• Damage

1. DUTY: That the doctor owed a duty of
care to the patient.
• DUTY OF CARE: A doctor who
undertakes to treat a patient has a
duty to take all the due care necessary
for the well being of the patient e.g.,
standard medical care, management
after care, advice and referral.

DUTY OF CARE
• Where a senior doctor delegates a task
to a junior, he must assure himself that
this assistant is sufficiently competent
and experienced to do the job. If
damage occurs as a result of improper
delegation, then senior doctor may have
carry part, or even all the responsibility.

2. DERELICTION
• The failure on the part of the doctor to
maintain care and skill. A doctor is
derelicts (breaches) his duty of care
when he fails to reach the standard or
proficiency expected to him.
• This dereliction or breach of the duty
by an act of omission or commission.

DERELICTION
• Examples: Carelessly tying off a ureter
during a hysterectomy is an act of
commission.
• Whilst failing to give anti tetanus toxoid
after a penetration injury would be act of
omission.

3. DIRECT CAUSATION
The patient must prove this was the
proximate cause of the harm, damage
or injury to the patient. The harm,
damage or injury can be physical,
mental financial.

“RES IPSA LOQUITOR’
• To prove causal connection between
negligence and damage is sometimes difficult
and generally established by expert
testimony.

• Sometimes the maxim
“RES IPSA
LOQUITOR” (facts
speak for itself) applies
and proof is crystal
clear, i, e,
i. failure to remove a
surgical instrument from
abdomen following
abdominal surgery.
ii. Cutting the cheek of a
baby during caesarian
section etc.

4. DAMAGES
• If the duty of care, dereliction and
direct causation have proved by the
patient an action of negligence cannot
be succeed unless there has been
some damage, harm or injury caused
to the patient, by an act of commission
or omission.

Damages
• Damages are:
• a) Loss of earning : Either due to absence
from work or prevention or impairment of his
duty or inability to carryout his occupation.
• Example: The impaired carrier of a fashion
model with a scarred lip.

Damages are:
• (b) Expenses incurred : e.g.-Hospital
expenses, special diet etc.
• (c) Reduction in expectation of longevity.
• (d) Reduce enjoyment of life, such as loss
of function of limb or sense.
• Example: An amateur sportsman crippled by a badly
treated Achilles tendon lesion.

Damages are:
• (e) Pain and suffering, either
physical or mental suffering
includes fright, humiliation and
embarrassment.
• (f) Loss of potency.
• (g) Death.

Novus Actus
Interveniens
• A doctor will not be responsible for any
harm caused to the patient due to
interference or intervention during the
course of treatment, by any person who
is not related with the treatment of the
person.

Novus Actus
Interveniens
• In some circumstances, it happens the other
way. For example, if the victim of an assault
suffers from some harm due to negligence of
the doctor during the course of treatment,
which the original assault was not likely to
cause, then the assailant will not be fully
responsible for the total harm. The doctor will
be held responsible for his negligent act
which caused the ultimate harm.

Contributory Negligence
• Contributory negligence is any unreasonable
conduct or absence of ordinary care on the
part of the patient, or his personal attendant,
which combined with the doctors negligence,
contributed to the injury complained of, as
direct proximate cause and without which the
injury would not have occurred.

These are
• 1. Failure to give the doctor accurate medical
history.
• 2. Failure to carryout all reasonable and
proper instruction given by the doctor.
• 3. Refusal to take the suggested treatment.
• 4. Leaving the hospital against doctors
advice.
• 5. Failure to seek further medical assistance if
symptoms persist.

Medical Maloccurence
• Not in all diseases or in all persons, one
medicine gives the same or expected result.
Bio-physiological actions and reactions to
different drugs are different and extremely
variable. Thus individual may react differently
to the same drug, in the same dose and in
the same mood of application, inspite of good
medical attention and care.

Medical Maloccurence
• Also it is to our knowledge that some
individuals may be quite tolerant to some
drugs due to which the usual dose of the drug
may not give the desired effect. On the other
hand some individuals may be idiosyncratic
to some drugs while others are not. These
are the medical maloccurences, which may
cause extra suffering to the patient and the
doctor is not actually responsible in these
cases, as the doctor is not negligent in his
act.

Misadventure
A misadventure is a mischance or
accident or disaster.
Misadventure is of three types:-
• 1. Therapeutic
• 2. Diagnostic
• 3. Experimental

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

Some Examples of
Therapeutic Misadventure
• 1. Hypersensitivity reaction, sometimes
serious or fatal, may caused by penicillin,
aspirin, tetracycline, etc.
• 2. Excessive administration of antidote to a
poisoned patient may cause death.
• 3. Prolong use of stilboesterol may cause
breast cancer.

Example Of diagnostic
Misadventure
• 1. Radiological procedures used for
diagnostic purpose may be fatal; e.g.
Anaphylactic reaction by dye used for
IVP, poisoning by barium meal,
traumatic rupture of the rectum and
chemical peritonitis during barium
enema.

Vicarious Responsibility
• This means responsibility of a person
due to the act of another. In medical
practice this means responsibility of a
superior medical employee for the
negligent act of his subordinate
employees or persons under training
who are expected to work under the
guidance of the superior.

• This working relationship also known as
“Respondent Superior" (let the Master
answer) because superior has to
answer for the fault of his subordinate.

Defenses of a doctor against
charges of negligence:
• When charged for negligence, a doctor may
plead any or many of the following arguments
as his defense.
• 1. That, he had no duty to the patient.
• 2. That, he discharged his duties according to
the prevailing standard of medical practice.
• 3. That, the damage caused to the patient is
not due his negligence but could be due to
the act of of any other person who also was
concerned with his treatment.

• 4. That, the damage was the result of a third
party that interfered in the treatment without
his knowledge or consent.
• 5. That the patient did not follow his advice
properly or it was a case of contributory
negligence.
• 6. That, the damage complained of is an
expected outcome for the particular type of
the disease the patient suffered from.

• 7. That, it was a case of reasonable error of
judgment.
• 8. That, it was a case of therapeutic or
diagnostic misadventure.
• 9. That, it was a case of medical
maloccurrence.
• 10. That, the complain should not be
entertained because it has already been
tried once by a court of law (Res judicata.).

• 11. That, the damage was the result of
taking some unavoidable risk which was
taken in good faith in the interest of the
patient with his or his guardian’s consent.
• 12. That, the patient persistently insisted on
the specific line of treatment which has
caused the damage inspite of the doctor’s
warning about the risk involved in that
method of treatment.

• 13. That, the time line allowed by the
law for lodging such a complaint is over
and the complaint may not by
entertained now. Complaints of
negligence should be lodged within two
years, counting from the alleged date of
causation of the damage.

Precautionary steps to avoid
a charge of negligence
• Never guarantee a cure
• Keep professional
knowledge updated.
• Apply due care and skill
in treating a patient.
• Take written consent in
all step of treatment if
involves risk.

• Take consent of both husband and wife in giving
treatment that may result in sterility or impotency.
• Advice laboratory investigation to confirm clinical
diagnosis.
• Record the patient’s conditions and treatment given
regularly.

• Do not venture a procedure beyond the skills / field of
specialization.
• Avoid experimental treatment with a patient. But if it
is necessary, proceed with written consent.
• Write prescription clearly, legibly and neatly with
proper instruction to the patient.
• Give optimum postoperative care.

• A qualified and experienced doctor should administer
anesthesia.
• Do all needful check up and give proper
premeditations prior to administration of anesthesia.
• Do not leave the patient till he/ she recovered from
anesthesia effects.
• Recommend inquest in case of death from
anesthesia on an operation table

• Choose your assistant
with due care.
• Do not stop giving
treatment unless the
patient desires or
agrees to it .
• Do not leave an
emergency case
unattended.

• Do not criticize a
professional
colleague.

• Do not perform
additional task for
which consent is not
taken.

• Arrange a substitute doctor with prior
information if going on leave during
treatment.
• Always examine a female patient in
presence of another female.
• Strictly maintain provisions of medical
termination of pregnancy (MTP) Act.

• Always issue medical certificates with
due care.
• Dot not makes statement admitting fault
on your part.

DUTIES, CONSENT, NEGLIGENCE.ppt

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