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  1. 1. LEGAL ASPECTS OF Medical Care Prof. Syed Amin Tabish FRCP (London), FRCP (Edin.), FAMS, MD (AIIMS)
  2. 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. 3. Why Ethics •Patients are increasingly aware of what they believe to be their human rights & expect doctors to respect them
  4. 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. 5. 1. The Duties of Clinical care • Protect Life & Health (clinicians to practice medicine to high standard not to cause unnecessary harm/suffering
  6. 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. 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. 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. 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. 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. 11. Challenges • Consent • Medical negligence • Medical reports • Certificates • Sexual offenses • Confidentiality • Terminal illness • Withdrawing of life-support
  12. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 37. Gunshot & Stab Wounds •Reports of these acts of violence are usually made to police
  38. 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. 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. 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. 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. 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. 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. 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