1 / 66

Healthcare Legal Aspects: Expert Insights for Doctors

Explore the legal landscape of healthcare with Dr. Nikhil Datar, MD, an esteemed Gyneacologist, Medico-legal Expert, Chairman of the Medico-legal Cell Association of Medical Consultants. Learn about laws related to medical profession, criminal law, civil/consumer law, professional ethics, and human rights, with a focus on topics like negligence, consent, and specific laws such as MTP Act and Organ Donation. Gain valuable tips and insights to navigate criminal, civil, and professional misconduct scenarios. Dr. Datar shares practical advice on police procedures, consumer court decisions, and safeguarding reputation in the healthcare industry. Stay informed on laws impacting doctors, from the Indian Penal Code to criminal negligence issues, aiding in safe and ethical medical practice.

copelandm
Download Presentation

Healthcare Legal Aspects: Expert Insights for Doctors

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. Legal aspects of healthcare 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.

  2. Health care & law • Related to establishment • Income tax Act.. Bio medical waste Disposal.. DC rules • Related 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

  3. Shall address • Criminal law, police procedures • Civil law and procedures • Law : Negligence • Law : Consent • Laws in making : • MTP Act ( Niketa Mehta) • Euthanesia ( Aruna Shanbhag ) tips

  4. My take.. • 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

  5. Nikhil Datar

  6. Consequences: • Police ( criminal law) • Advocate ( civil law) • Medical council ( Professional misconduct) • Media ( TRP law) • Ransacking the hospital / assaulting the staff

  7. Our worries: • Can I give a DC? Is PM mandatory? • Should I inform police? • What to do if I get a “friendly call” from PM room? • Will the police arrest me? Dr Nikhil D. Datar

  8. Our worries: • What will happen to the reputation? • What will the consumer court decide? • What is my indemnity cover? • Will relatives ransack the hospital? Dr Nikhil D. Datar

  9. Maharashtra medicare service persons & institutions 0rdinance • Prevention of violence • Damage and loss of property

  10. penalty • Offence cognizable and non-bailable • Imprisonment up to 3 years and fine up to 50000 Rs • Compensation twice the amount of damage caused

  11. Criminal law for doctors Lord Macaulay (1833) Actus Non Facit REUM,NIsi Mens Sit Rea

  12. HEALTHCARE & Indian penal code • 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

  13. Homicide • 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

  14. Death Certificate:To Be(given) OR Not To Be(given)!! Dr Nikhil D. Datar

  15. A doctor can give DC: If he knows the cause of death And not otherwise Dr Nikhil D. Datar

  16. Inform the police: • When cause of death is not known • When cause of death is known but…………. Dr Nikhil D. Datar

  17. When to inform police • Death linked with abortion • Death on operation table or post op 24 hours • Death related to medical procedure Dr Nikhil D. Datar

  18. When to inform police: • Death related to accidents or violence • All deaths related to tubal sterilizations (PM mandatory) • When there is allegation of medical mis-management (source:J.K.Mason .Edition III) Dr Nikhil D. Datar

  19. Reporting the death to police=Performing post mortem • This is a wrong equation Dr Nikhil D. Datar

  20. Interaction with the Police • Informing the police • “Panchnama” • Handing over the papers Dr Nikhil D. Datar

  21. POLICE PROCEDURE • PM report • Opinion of police surgeon • FIR • Arrest Dr Nikhil D. Datar

  22. Section 304 A:Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment for two years , or with fine or with both. It is a cognizable and bailable offence Dr Nikhil D. Datar

  23. Acts held “negligent” • 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

  24. Preventing criminal negligence • 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

  25. Safe surgery checklist: who

  26. Dr Nikhil D. Datar

  27. In the Criminal court: • “Presumption of innocence” • Burden of proof • Degree of evidence • Prosecution has to prove the need of penal remedy. Dr Nikhil D. Datar

  28. Consequences: • Police ( criminal law) • Notice of advocate ( civil law) • Notice from medical council ( medical council) • Media ( TRP law)

  29. Civil procedure code & procedure in consumer courts • Complaint • Written statement • Rejoinder • Sur rejoinder

  30. Proving standard of care • Laws and rules • Text books • Expert Evidence • Guidelines from professional bodies Nikhil Datar

  31. Out of court settlement:“Settle” it……… officially! Nikhil Datar

  32. Doctor Patient Relationship • Consent • Negligence

  33. Tort Contract • 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

  34. Tort Contract • Damages unliquidated • Limitation : from the date when damage is suffered • Damages well defined • Limitation: from the date of breach of contract

  35. Consent : general principles Law of torts • Competent to consent • Capacity to consent

  36. No consent • False Imprisonment • Assault & Battery • Mayhem

  37. Consent: No good • Fraud • Misrepresentation • Undue influence • Non voluntary • Not an “ informed consent”

  38. Law on consent • Samira Kohli Vs Dr Prabha Manchanda (SC)

  39. Doctrine of “ Real & valid consent” • Capacity & competency to consent • Voluntary • On the basis of adequate information

  40. How much is “ adequate”? • 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

  41. Can there be a blanket consent? • 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

  42. Law of medical Negligence • Breech of duty • Doing or not doing some thing which a reasonable and prudent man would not do or do.

  43. Negligence: Ingredients • Legal duty must exist • Duty can be independent of contract • Damage should be caused (causa causans) • Act must be below the “Standard of reasonable care”

  44. Standard of Reasonable care • 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)

  45. Grades of adverse events • Criminal negligence • Civil negligence • Mistake • Error • Misfortune/ “Act of God”

  46. Criminal vs civil negligence • Jacob Mathew Vs State of Punjab

  47. Criminal vs civil negligence • 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”

  48. Suggested mechanism • 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?

  49. Shifting pendulum.. • Jacob Mathew vs State of Punjab • Martin D souza vs Mohd Isfaq • V krishnarao vs Nikhil super speciality Hospital

  50. Future laws MTP Act: Dr Nikhil Datar VS Govt of India Euthanesia: Pinky Virani Vs Govt of India

More Related